Thalman v. Schultze
| Decision Date | 15 September 1931 |
| Docket Number | 7002. |
| Citation | 160 S.E. 303,111 W.Va. 64 |
| Parties | THALMAN v. SCHULTZE et al. |
| Court | West Virginia Supreme Court |
Submitted September 8, 1931.
Syllabus by the Court.
Causes may be joined in same count where damages result to party in same manner from same negligent act of defendant and are coincident in time; claims for personal injury and property damage arising out of same accident may be united in single count.
Where the damages result to a party in the same manner, and from the same negligent or wrongful act of the defendant, and are coincident in time, and the cause of action accrues to the plaintiff in the same right and against the defendant in the same character or capacity, they may be joined in the same count in the declaration.
Party who obtained favorable ruling cannot on writ of error for first time claim ruling was not explicit.
A party to an action who, at the trial, obtains a favorable ruling on his own motion, will not be heard on writ of error to challenge the sufficiency of the ruling on the ground that it was not explicit, when he raised no such objection at the time it was made.
Husband who paid chauffeur's wages and furnished part of money for automobile purchased in wife's name held liable for damages caused by chauffeur's negligent driving when on family mission.
Although the title to an automobile causing an injury was in the wife's name, but had been paid for at least in part with money furnished to the wife by the husband, and used for the pleasure and convenience of the family, and the chauffeur's wages were paid by the husband, the latter is liable for damages caused by the negligent driving of the chauffeur when on a family mission.
Verdict for injuries will not be disturbed, unless unsupported by evidence or so large as to indicate prejudice.
"The amount of damages found by a jury in an action for personal injuries will not be disturbed unless it is unsupported by the evidence or is so large as to indicate that the jury was prejudiced." Truschel v. Amusement Company, 102 W.Va. 215, 136 S.E. 30.
Error to Circuit Court, Ohio County.
Action by Edwin J. Thalman against Amelia E. Schultze and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
Handlan Garden & Matthews, of Wheeling, for plaintiffs in error.
O'Brien & O'Brien, of Wheeling, for defendant in error.
The plaintiff, Edwin J. Thalman, was awarded damages by a jury in the circuit court of Ohio county in an action of trespass on the case against the defendants, Amelia E. Schultze, Orin S Carson and J. W. Schultze, for personal injury and for damage to his automobile sustained by him in a collision of his automobile with another driven by defendant Carson and belonging to defendant Amelia E. Schultze, while both of said cars were being operated upon the National road in a suburban section of the city of Wheeling. There was a verdict of $15,000 for compensatory damages against the three defendants, and a verdict of $1,000 punitive damages against Amelia E. Schultze and Carson. Writ of error and supersedeas has been awarded by this court on petition of the three defendants.
The accident occurred about one o'clock a. m., May 6, 1929. The plaintiff was driving eastwardly toward his suburban home and the other car was proceeding westwardly in the direction of the central part of the city. According to plaintiff's testimony, he was driving at the rate of about 25 miles per hour and to his right of the center of the road. He observed the approach, at a high rate of speed, of the automobile which shortly thereafter collided with his. When the automobile thus observed by plaintiff had proceeded to within a relatively short distance of his automobile, it suddenly swerved to its left diagonally across the highway and in the direction of plaintiff. In an effort to avoid the impending collision plaintiff drove on to the sidewalk on his right side of the road, the right front and right rear wheels of his automobile being over the curb. While in that position, the oncoming machine, afterwards found to belong to defendant, Amelia Schultze, and being then driven by defendant, Carson, collided with that of plaintiff, throwing him onto the highway and causing serious injury to himself and damage to his car.
While the statements of the plaintiff concerning the speed of his own machine and that driven by Carson and their respective positions upon the highway immediately before and after the collision are contradicted by Arden Friend who was riding in the car with Carson, a decided preponderance of the testimony shows that, after the collision and before the cars were moved, both machines were on the plaintiff's side of the highway; both rear wheels and the right front wheel of plaintiff's car were over the curb, and defendant's machine occupied a position at right angles to the same curb line, a few feet beyond plaintiff's car, and a very short distance from the curb. Broken glass was strewn over the highway at the point occupied by the two automobiles. According to the testimony of almost every witness who observed the damaged condition of both cars at the scene of the wreck, the left front wheel of the automobile driven by Carson was broken entirely off the axle and the left front fender and headlight materially damaged. Both of the rear wheels, the rear axle and the left running board of plaintiff's car were smashed and broken beyond repair. It is also in evidence (uncontradicted) that "*** practically the whole car (plaintiff's) was dismembered all the way through."
City police officer George Ebbert, who placed Carson under arrest and conducted him to the city jail, stated that he was intoxicated. The policeman was corroborated in this by other officers and individuals who saw Carson immediately following the collision. Arden Friend, however, denies that Carson was intoxicated. Carson did not testify.
A very short time after the collision plaintiff was taken to the Ohio Valley Hospital where, according to the physician who examined him there, he was found to be suffering from shock bruises, a sprain of the right elbow and right knee joint, laceration of the lower left leg and a sprain and laceration of the ligaments of the sacroiliac joint. He was confined to his bed in the hospital for a period of six or seven weeks and then permitted to return to his home where he continued to receive treatment for his injuries for a period of four or five weeks. From the date of his confinement in the hospital, May 6, 1929, until the date of the trial of this case in the circuit court, May 20, 1930, plaintiff was forced to wear a belt or similar support because of the injury to the sacroiliac joint, and, according to testimony of physicians at the trial, it was advisable for him to continue to wear the belt or support for a period of six months to a year thereafter.
There arises a question of pleading which should be first considered. The trial court overruled defendants' demurrer to the declaration and each of the five counts. At the trial the court struck out the first two counts. In each of the three remaining counts the plaintiff alleges that he suffered personal injuries and that his automobile was completely destroyed, and asserts his right to recover on account of each of said elements of injury. Can these matters be united in the same counts?
Variant opinions exist as to whether, when a person suffers injury to both person and property as a result of a single act of negligence on the part of another, there arise two causes of action or but a single cause of action with two elements of damage. 1 Corpus Juris, p. 1058; 1 Ruling Case Law, p. 347. It is recognized that there are differences between the right incident to personal injury and the right incident to property damage. The period of limitation of action for personal injury is shorter than the period for injury to property; the former dies with the person unless the injury caused death, the latter does not; the former is non-assignable, the latter is assignable; the former does not pass to the trustee of a bankrupt for the benefit of his creditors, the latter does; if the personal injury produces death the damages recovered by reason thereof are, under the express terms of the statute, conserved for the distributees of the deceased, while recovery for the property damage would go to his estate primarily for the benefit of creditors. This recital illustrates that different sets of situations may be presented as incident to a personal and property loss arising out of the same occurrence. Appropriate procedural requirements would attend.
It is a general rule of common law pleading that a party having a plurality of claims or causes of action, of the same general character, against the same defendant, not only can but should unite them in the same action. 1 Chitty on Pleading p. 199; Hogg's Pl. & Forms, § 169; 1 Barton's Law Practice, p. 303; Shaffer v. Railroad Co., 93 W.Va. 300, 116 S.E. 747; Coal Land Development Co. v. Chidester, 86 W.Va. 561, 103 S.E. 923. Of course, it is contemplated as a general rule that such matters shall be set forth in different counts. Burke's Pleading & Practice, § 473. If the plaintiff's claims for personal injuries and property damage, respectively, had been placed in separate counts of the declaration, there would seem to be no question of the propriety of the pleading. But the pleader not having framed the counts of the declaration in that manner, must the plaintiff be precluded from recovery under the declaration because of the intermingling of the several claims in each of the three counts which the court permitted the jury to consider? We think he should not be so precluded under the facts as...
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