Smith v. Slack., (No. 9434)
| Decision Date | 08 June 1943 |
| Docket Number | (No. 9434) |
| Citation | 125 W.Va. 812 |
| Court | West Virginia Supreme Court |
| Parties | Laura Smith, Admx., etc. v. J. M. Slack et al. |
1. Evidence
Expert or medical testimony is not in all cases necessary to establish the cause of death.
2. Death
A jury may consider proved facts and circumstances, at the time of, and preceding, the demise of a decedent, for the purpose of determining the cause of his death.
3. Evidence
A court will take judicial notice that certain persons are sheriff and deputy sheriffs, respectively, of the county in which it sits.
4. Prisons
In an action against a sheriff and certain of his deputies for wrongfully causing the death of an insane person detained by them in jail, where evidence has been introduced tending to show gross acts of negligence and mistreatment of the decedent which, from common knowledge of mankind, would operate to weaken an injure physically, and possibly to kill, a human being, and further showing that the decedent did, in fact, die after fourteen days of such treatment without any other cause of death appearing, the question whether such neglect and mistreatment caused, or concurred in causing, the death of the decedent is for the jury.
Error to Circuit Court, Kanawha County.
Death action by Laura Smith, administratrix of Henry A. Foss, against J. M. Slack and others. Judgment for defendants, and plaintiff brings error.
Reversed; verdict set aside; new trial awarded.
G. S. Millhouse, for plaintiff in error.
Kay, Casto & Amos, for defendants in error.
This action was instituted in the Common Pleas Court of Kanawha County by the administratrix of Henry A. Foss, to recover damages for his death allegedly caused or contributed by the wrongful acts of defendants. Upon the trial, at the conclusion of the plaintiff's evidence, the court on motion of defendants, excluded the evidence of the plaintiff, directed the jury to find a verdict for the defendants, thereafter overruled the motion to set aside said verdict and rendered a judgment of nil capiat. The Circuit Court of Kanawha County on petition for writ of error found that the judgment of the Common Pleas Court was plainly right, denied a writ of error, and this Court granted a writ of error to review the judgment of the circuit court.
The declaration alleges that the defendant, J. M. Slack, was the Sheriff of Kanawha County at the time of the incarceration of Foss in the county jail, and that the defendants, William Dyer and Robert Slack, were deputy sheriffs, Dyer being jailer and Slack assistant jailer.
The plaintiff's claim is that her decedent, while insane, was held in the county jail of kanawha County, in custody of the sheriff and the two deputies, during which incarceration he was the victim of neglect, mistreatment and abuse which caused or at least contributed to his death.
If the evidence of plaintiff is not sufficient to support a verdict, had one been returned in her favor, the action of the court is without error. On consideration of such motion it is the duty of the trial court to consider all inferences which the jury could justifiably draw therefrom. Estep v. Price, 93 W. Va. 81, 115 S. E. 861; Jameson v. Norfolk & W. Ry. Co., 97 W. Va. 119, 124 S. E. 491; Fischer v. Clark, 110 W. Va. 420, 158 S. E. 504; Lewis v. State Automobile Mutual Ins. Co., 115 Wr. Va. 405, 177 S. E. 449.
The duties of the sheriff as jailer of the county are well defined by Code, 7-8-2, in the following pertinent language: . The duties thus imposed are ministerial, involving no discretion on the part of the jailer, and imposing a liability for the nonperformance or the negligent performance thereof. Clark v. Kelly, 101 W. Va. 650, 133 S. E. 365, 46 A. L. R. 799; State v. Conley, 118 W. Va. 508, 190 S. E. 908.
In order properly to appraise the question at issue, a detailed recital of the evidence is proper. Foss, residing in Akron, Ohio, was in Charleston engaged in the business of photographing customers of merchants for advertising purposes. He was a guest at the Lincoln Hotel. On the evening of May 2, 1938, the manager of the hotel met Foss on the street and talked with him, at which time Foss asserted that he expected to acquire great wealth. About seven o'clock of the same evening, he saw Foss at the Lincoln Hotel, where he was talking to some men about his possession of great wealth and was detailing large schemes for improving parts of the city. Foss was not violent, but the manager of the hotel, fearing that he would become so, called a city policeman who persuaded Foss to accompany him under the pretense of finding a larger audience. The policeman, in fact, took Foss to the county jail, where he was incarcerated and detained until his death on May 16, 1938.
Upon Foss's being confined in the county jail, the manager of the hotel wired his wife to come to Charleston, which she did. She made an effort to see her husband but was not permitted to do so, and, being in straitened financial circumstances, she returned to Akron, Ohio, to arrange for his transfer to that place, and did not return until after the death of her husband. At the time Foss was placed in the jail he weighed approximately one hundred sixty-five pounds; at the time of his death one hundred thirty pounds. On examination of the body after his death, it was found that he had a bruise on his neck and abrasions on the side of his face, and that he was very much emaciated.
Vincent Elkins, a "trusty" in the jail, on a charge of larceny, testified that Foss was first put in a padded cell and later transferred to another part of the jail; that he was naked during the time; that his cell was dirty; that the bed of the cell worked on hinges on the side of the cell wall, and was tied up so that he could not get it down; that Foss was required to sleep on the wet floor, although the witness says he never saw Foss lying on the floor; that when the witness first saw Foss he weighed around one hundred sixty-five pounds; that on one occasion he saw Foss's hands tied on the outside of the bars of the cell, at which time Foss was naked. Elkins further testified that there was a bad odor in the cell where Foss was confined, and further that he never saw a doctor in Foss's cell except the one who examined Foss to determine his mental condition. However, the opportunities of this witness for close examination and observation of the cell were not good.
Raymond Miller, another inmate of the jail during the time Foss was confined therein, states that the condition of the cell where Foss was confined was bad; that there was a dirty mattress on each bed or "bunk"; that Foss did not have any place to lie down during the day, the "bunk" being fastened up on the wall, for the reason that Foss was accustomed to "banging the bunks, making noise"; that he saw Foss lying on the floor and that the floor was damp; that the weather was cold during the time Foss was in jail; that Foss was naked and shivering; that he refused to eat and apparently had a fever before he died; that three or four days before Foss died the witness called for a doctor several times; and that on the morning Foss died he was sitting on the commode, looking pale, whereupon witness told the jailer that there was no use to call a doctor, but to call an undertaker.
Herbert Romberg, another inmate of the county jail, testified that Foss used the floor of his cell for a toilet, taking water from the commode and throwing it on the floor; that he made noise with the bunks and that Jack King and Rufe Clark tied the bunks up, after which they were never let down; that the cell were Foss was located was cold, the witness using two blankets in his own cell; that Foss ate very little; that he was served beans and cornbread and sometimes a slice of white bread; that the food was not good; that Foss was free except one time when he was tied to the bars of his cell; that he was always dipping water out of the commode and drinking it; that the witness and Raymond Miller both tried to get a doctor three or four days before Foss died; that they found Foss dead sitting on the commode, whereupon they called the jailer, who directed the removal of his body from the cell. The undertaker who embalmed the body of Foss testified that he recalled no evidence of bruises on his body.
During the time Foss was confined in jail the temperature in the City of Charleston, at a point other than the jail, from May 2 until May 16, showed a maximum temperature ranging between 89 and 62° Fahrenheit, and minimum temperatures ranging from 37 to 60° Fahrenheit.
Dr. J. Hudson Robinson, a physician and surgeon, engaged in the general practice of medicine, testified as an expert to a hypothetical question only, not having examined the patient, that having regard to Foss's age, his mental condition, his refusal to eat, and the condition of his confinement in the jail, his death possibly resulted or was hastened by such conditions of his confinement.
The statement of the trial judge upon his sustaining the motion to direct a verdict for the defendants is in the record and is as follows:
...
To continue reading
Request your trial
-
Totten v. Adongay
...or wrong of a tortfeasor and the injury suffered by the victim. Circumstantial evidence may be sufficient." Smith v. Slack, 125 W.Va. 812, 818, 26 S.E.2d 387, 390 (1943). In other instances, medical testimony is warranted to establish the proximate cause link between the claimed negligence ......
-
Pygman v. Helton, 12259
...Bus Lines, Inc., 133 W.Va. 291, 55 S.E.2d 881; Adkins v. Raleigh Transit Company, 127 W.Va. 131, 31 S.E.2d 775; Smith v. Slack, 125 W.Va. 812, 26 S.E.2d 387; Fielder v. Service Cab Company, 122 W.Va. 522, 11 S.E.2d 115; Hambrick v. Spalding, 116 W.Va. 235, 179 S.E. 807; Lewis v. State Autom......
-
Ross v. Schackel
...v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975); State v. National Sur. Co., 162 Tenn. 547, 39 S.W.2d 581 (1931); Smith v. Slack, 125 W.Va. 812, 26 S.E.2d 387 (W.V.1943); M.L. Schellenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or......
-
Hickson v. Kellison
...(1971); Smith v. Turner, 12 Utah 2d 66, 362 P.2d 581 (1961); see also Annot., 51 A.L.R.3d 111 (1973).2 We have held in Smith v. Slack, 125 W.Va. 812, 26 S.E.2d 387 (1943), that a failure of a jailer to follow such guidelines may impose personal liability.3 W.Va.Code, 7-3-2, refers not only ......