Theo Horchler v. Joe Van Zandt, (No. 8762)

• Decision Date: 04 October 1938
• Docket Number: (No. 8762)
• Parties: Theo Horchler v. Joe Van Zandt
• Court: West Virginia Supreme Court

120 W.Va. 452

Theo Horchler

v.Joe Van Zandt

(No. 8762)

Supreme Court of Appeals of West Virginia.

Submitted September 13, 1938.

Decided October 4, 1938.

1. Appeal and Error

The verdict of a jury on conflicting evidence, under proper instructions, will not be disturbed on writ of error, unless plainly against the preponderance of the evidence.

2. Pleadings

Pleadings are not vitiated by surplusage.

3. Jury

It is not prejudicial error against a defendant in a law action for the trial court to place in the jury box twenty-four qualified jurors in order that defendants having antagonistic interests in the case may be afforded opportunity for separate peremptory challenges.

4. Trial

The Rules of Practice for Trial Courts require particularization of objection to instructions at the time they are offered.

5. Joint Adventures-

An instruction relating to the subject of joint enterprise is properly refused where, from undisputed facts on that phase of the case, the court can say as a matter of law that because of insufficiency of proof of such relationship between the parties the jury would not be warranted in considering that a joint enterprise existed.

Error to Circuit Court, Preston County.

Action by Theo Horchler against Joe Van Zandt and another, for injury received in automobile accident. From a judgment on a verdict for plaintiff, the named defendant brings writ of error.

Affirmed.

P. J. Crogan, for plaintiff in error. J. V. Gibson, for defendant in error. Charles P. Wilhelm and F. E. Parrack, for Victor Halbritter.

Maxwell, President:

This writ of error presents for review the trial of an action wherein the plaintiff, Theo Horchler, recovered judgment, on verdict, against the defendants, Joe Van Zandt and Victor Halbritter, for $2,000.00. Writ of error was awarded Van Zandt alone.

The action is for personal injury received by the plaintiff July 19, 1935, in an automobile accident on a cinder and dirt road between the towns of Newburg and Tunnelton in the county of Preston. The plaintiff was riding with the defendant Van Zandt in the front seat of the latter's automobile, he being the operator thereof. As the automobile proceeded around a curve westward toward Newburg, it collided with a truck moving eastward toward Tunnelton. The truck was owned by Leslie Halbritter and was operated at the time by his son, Victor Halbritter. The plaintiff instituted this action against the two Halbritters and Van Zandt. The jury, at the direction of the court, found in favor of Leslie Halbritter, but, on consideration of the whole case, returned a verdict against Van Zandt and Victor Halbritter for $2,000.00, and on that verdict the court entered judgment. Victor Halbritter's subsequent petition to this court for writ of error was denied; consequently, the judgment against him has become final.

There is sharp and irreconcilable conflict of testimony whether the accident was brought about through negligent driving of Van Zandt or Halbritter, or both of them. Each, in his testimony, lays the responsibility on the other. The court having denied writ of error to Halbritter because it was of opinion that the record did not disclose prejudicial error against him, there comes now before the court solely an appraisal of the record as it affects Van Zandt.

The first question for consideration is whether the record presents appreciable evidence tending to establish that the accident was proximately caused by negligent conduct of Van Zandt. There is such evidence, which, if believed by the jury, was sufficient to warrant a verdict against him. Halbritter testified that at the instant of impact the left side of the Van Zandt automobile was two or three feet to the left of the middle of the road; that the impact caused a blow-out of a tire of the Halbritter truck, and that the mark of this blow-out was impressed in the cinders and ashes; that this impression was on Halbritter's right side of the road and that in the hole there was picked up immediately after the accident a small piece of rubber which, in the accident, had been knocked off his left running board. Crawford Temple, a witness introduced by Halbritter, testified that he lived near the place of accident and being attracted by the noise, went immediately to the scene; that he could see the marks on the road where the accident took place and that the mark of the blow-out of the Halbritter tire was a little to the south side (Halbritter's right) of the middle of the road.

There were no outstanding physical facts from which the court would be warranted in holding that the jury was plainly in error as to either Halbritter or Van Zandt. In the evidence there is ample justification for the belief by the jury that each of the parties was unduly crowding the middle line of the road and that, therefore, there was joint responsibility for the accident which occurred. The verdict of a jury on conflicting evidence, under proper instructions, will not be disturbed on writ of error, unless plainly against the preponderance of the evidence. Stephens v. Bartlett, 118 W. Va. 421, 191 S. E. 550.

Errors of law assigned by Van Zandt: It is urged that there was prejudicial error in overruling Van Zandt's demurrer to the amended declaration because there is contained therein an allegation that plaintiff's husband "was crippled and unable to engage in any oc- cupation for hire or gain and that said plaintiff was the breadwinner and head of the family." An allegation such as this may be somewhat unusual, but, at most, being unnecessary in the factual allegations against the defendant, the averment is mere surplusage. Pleadings are not vitiated by surplusage. Thomas v. Electrical Company, 54 W. Va. 395, 46 S. E. 217; Martin v. Cochran, 94 W. Va. 432, 119 S. E. 174.

Again, it is insisted that the court erred in impaneling twenty-four jurors instead of twenty. The larger number was directed by the court in order that the Halbritters might have four strikes as well as the plaintiff and Van Zandt each have that number. Counsel for the defendants had stated to the court that the interests of the Halbritters and Van Zandt were antagonistic and therefore they could not unite in their peremptory challenges. The statute provides: "And in every case, unless it be otherwise specially provided by law, the plaintiff and defendant may each challenge four jurors peremptorily." Code, 56-6-12. It is usual for the court to place in the box twenty qualified jurors, they having passed the test under voir dire. But where a trial court, prompted by a desire to extend every privilege to a litigant, calls a panel of more than twenty, to the end that each defendant, as well as the plaintiff, may have four peremptory challenges, we are impressed there is not on that account any possibility of error whereof a defendant may complain. Certainly, a defendant may not in the first instance announce that he cannot cooperate with a co-defendant in making peremptory challenges and later object because the number of the panel was increased so that he might be accorded the statutory number of challenges independent of his co-defendants.

Instructions. The giving of certain instructions tendered by the plaintiff was objected to by Van Zandt, but the grounds of objections were not specified. The rules of practice for trial courts require such particularization. Rule VI (e), 116 W. Va. lxiii; Saunders v. McCown, 120 W. Va. 294, 198 S. E. 520; Hale v. McGinley, 119 W. Va. 565, 195 S. E. 201.

The refusal of the court to give Van Zandt's instruction Number Two is assigned as error. This instruction would have told the jury that if they believed from the evidence that the plaintiff and Van Zandt, at the time of the accident, were engaged in a common or joint enterprise, Van Zandt would not be liable to the plaintiff for damages on account of her injury unless it was shown that he was grossly negligent and wantonly and willfully drove his car so as to injure the plaintiff. These two parties both lived at Newburg and were employed by a mercantile firm at Tunnelton, about seven miles distant. Ordinarily, they drove to and from their homes and place of employment in a truck owned by their employer. On the day of accident the truck was in need of repair, so, according to the plaintiff's testimony, the employer suggested that, instead of trying to use the truck, the plaintiff ride with Van Zandt in his automobile. Specifically, she said in evidence that the employer "asked me to ride with Mr. Van Zandt,...