Truschel v. Rex Amusement Co

• Decision Date: 14 September 1926
• Docket Number: (No. 5687.)
• Citation: 136 S.E. 30
• Court: West Virginia Supreme Court
• Parties: TRUSCHEL. v. REX AMUSEMENT CO.

136 S.E. 30

TRUSCHEL.

v.REX AMUSEMENT CO.

(No. 5687.)

Supreme Court of Appeals of West Virginia.

Sept. 14, 1926.

Rehearing Denied with Modification Nov. 12, 1926.

(Syllabus by the Court.)

When a "benign interpretation" of all the evidence supports a finding in favor of demur-ree upon a demurrer to the evidence, such finding will not be disturbed despite lack of direct evidence on a material point. Point 3, syllabus Garrett v. Ramsey, 26 W. Va. 345, applied.

Where evidence necessary to sustain a verdict for plaintiff has been erroneously excluded upon the objection of defendant, the defendant cannot successfully complain that the verdict is not sufficiently sustained for want of such evidence.

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.

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Ohio County.

Action by Marianita Truschel against the Rex Amusement Company. Judgment for plaintiff, and defendant brings error. Affirmed.

John A. Howard, Wm. C. Howard, and J. M. Ritz, all of Wheeling, and John Fletcher Caskey (of Hughes, Rounds, Schurman & Dwight), of New York City, for plaintiff in error.

O'Brien & O'Brien, of Wheeling, for defendant in error.

HATCHER, J. This suit was instituted in July, 1924, in the circuit court of Ohio county to recover damages for personal injury received by the plaintiff in the Rex Theater in the city of Wheeling. Upon the trial of the case the defendant demurred to the evidence, the court overruled the demurrer, and, upon a conditional verdict of the jury for the plaintiff, rendered a judgment of $1S, 000 in her favor. Defendant prosecutes' error here.

On the night of October 15, 1923, the plaintiff, then aged 23 and unmarried, and several companions attended an entertainment in the Rex Theater. As they were descending the stairs between the balcony and the first floor of the theater, the plaintiff fell, breaking an ankle. One of her companions summoned a Mr. Zeppos, who carried plaintiff out to a car. When she reached home, Dr. Wilson set the fracture and put the ankle in a cast. Dr. Truschel took charge of the patient the next day. For some nine weeks she was compelled to keep the ankle in an elevated position, and for weeks suffered such pain that she could not sleep without the aid of drugs. An X-ray taken during this period showed a simple fracture of the tibia and fibula bones at the ankle. After using crutches for four or five months, and a cane for a month or two, the plaintiff was able to walk a little without support, but not without pain and swelling of the ankle. About five months after the injury, Dr. Davidse began treating the ankle electrically and with massage, in an attempt to keep it in proper position until the muscles should strengthen sufficiently to hold it, and also to prevent stiffening of the joint. At the time of the trial in September, 1925, these treatments were still being employed once a week. A second X-ray taken about three weeks before the trial showed that the bones were healed, but with a slight displacement. The condition of the plaintiff at the time of the trial was proved to be as follows: The arch of her foot had fallen; her ankle was stiffened and somewhat enlarged; there was a tendency to rheumatism in the foot and knee; there was some shortening of the tendons of the ankle, interfering with walking and tending to throw the foot to one side; she was compelled to wear bandages to keep the foot in place, and a support to prevent the arch from falling; she was unable to walk for any distance without great pain and swelling of the ankle, and could not engage in sports and pastimes, such as swimming, dancing, tennis, and hiking, as had been her wont before the injury. Dr. Davidse declared that he could not at the time say whether or not the injury would be permanent; that with constant treatment it might be worked out in years, but "no mancould say"; and that the patient was making "beautiful progress." Dr. Truschel supported his testimony.

The defendant alleges error to the trial court in (1) overruling its demurrer to the evidence; and (2) in refusing to set aside the verdict.

1. The main contention of defendant under its first assignment of error is that the plaintiff did not prove that the defendant was operating the Rex Theater at the time of the injury.

Evidence was adduced that the defendant was chartered to operate, etc., theaters; that its president in 1921 was George Zeppos; that at the date of the injury a Mr. Zeppos was an officer of defendant; that he operated the Rex Theater; and that he carried plaintiff from the theater following her accident.

Upon the demurrer of defendant to the evidence, the evidence of plaintiff must be "interpreted most benignly" in her favor, and she must be given the benefit of all inferences that can be fairly deduced from her evidence. Garrett v. Ramsey, 26 W. Va. 345; Talbott v. Railway Co., 42 W. Va. 560, 26 S. E. 311. When we consider that the purpose of defendant was to operate theaters and that the building in which plaintiff was injured was not only a theater but bore in part the same name as defendant, that George Zeppos was president of defendant in 1921, and that a Mr. Zeppos was an officer of defendant, operating and present in the Rex Theater at the time of plaintiff's injury, we cannot say-that a benign interpretation of these facts does not warrant the finding that the defendant was operating the Rex Theater at the time of the accident. Further consideration of this proposition will be had in connection with defendant's next point, which is that there is no evidence showing knowledge by defendant of the alleged defect in the carpet.

The plaintiff offered to prove by a Mrs. Whitehead that early in October, 1923, she and her husband attended a performance at the Rex Theater "operated by defendant company"; that they came out of the theater on the same stairway upon which plaintiff was injured; that the carpet thereon was then loose and "bulged over" one of the steps, causing Mrs. Whitehead to fall; and that Mr. Whitehead called the attention of the proprietor and employees "of the Rex" Theater to the looseness of the carpet, but that this defect had not been remedied.

Counsel for defendant objected to the offer and the objection was sustained.

It is a settled rule of law that on appeal, a party will not be permitted to take advantage of an error which he induced. Harris v. North, 78 W. Va. 76 (81), 88 S. E. 603, 1 A. L. R. 356; Comer v. Lbr. Co., 59 W. Va. 688, 53 S. E. 906, 6 L. R. A. (N. S.) 552, 8 Ann. Cas. 1105; Vance v. Evans, 11 W. Va. 342; Cambron v. State, 191 Ind. 431, 133 N. E. 49S, 19 L. R. A. 623 (626); 4 C. J. 700; 2 Stand. Ency. Pro. 431; 2 R. C. L. 238-9. The defendant does not dispute the rule, but contends that, as applied to this ease, it simply means the defendant cannot allege in this court that the lower court erred in rejecting the proffered testimony of Mrs. Whitehead. Counsel further contend:

"Since the court did not permit the evidence to go in, there was nothing to explain or contradict. There was a total absence of proof on this point. * * * The defendant demurred to the evidence that the court permitted to go in, not to the evidence the court rejected. * * * Because of absence of this proof defendant demurred to the plaintiff's evidence. * * * No court has gone to the extent of supplying or excusing proof of a material fact. If the court is of opinion that it was error to reject the evidence of the Whiteheads, it ought to award a new trial and give the plaintiff an opportunity to make proof on this material point. That is the utmost the court should do."

This argument is ingenious, but counsel have failed to apply fully the law of estoppel. The excluded testimony was competent and material. It would have tended to prove the ownership of the theater by defendant. It would have established prima facie that defendant had notice of the defect in the carpet. The trial court erred in rejecting that evidence. The error was induced by defendant. It is true that this court will not supply the excluded proof, but the law requires this court to ignore the complaint of defendant that the plaintiff failed to prove the facts which the excluded evidence would have established. "When a plaintiff offers competent evidence to prove a material fact in issue, which is erroneously excluded by the court on objection of defendant, the defendant will not be permitted to urge cm appeal, as a ground for reversal, that the plaintiff failed to prove the fact which such evidence would have established." Missouri, etc., Ry. Co. v. Elliott, 102 F. 96, 42 C. C. A. 188. "Appellant cannot be allowed to procure an erroneous ruling in his favor and exclude competent and material evidence on the trial when it is offered and ready to be produced, and then on appeal insist that for the want of that very proof the decree cannot be sustained. A party will never be allowed to so take advantage of his own wrong, or the errors of the court induced on his own motion, and then compel the opposite party to suffer the consequences. Such a proceeding would be the merest...