Utt v. Herold
| Decision Date | 05 June 1945 |
| Docket Number | (No. 9671) |
| Parties | Nona Utt, Admrx., etc. v. John Herold, Jr., et al. |
| Court | West Virginia Supreme Court |
Records of a court showing a plea of guilty in a criminal trial being a rebuttable admission of the person entering such plea may be admitted in evidence on the trial of a civil action, if relevant.
It is not error to permit the introduction in evidence of an admission made by a co-defendant in an action at law, where a general objection thereto is interposed, and where no effort is made to limit the effect of such evidence to said codefendant.
In an action for death by wrongful act a verdict for eight thousand dollars will not be set aside for the reason that no pecuniary damages to decedent's estate are shown.
Affidavits based solely on information given affiants by members of the jury which returned a verdict in an action at law are not admissible or sufficient to impeach the verdict so returned.
Error to Circuit Court, Webster County.
Action by Nona Utt, administratrix of the estate of Burl Utt, deceased, against John Herold, Jr., and another for damages for death of plaintiff's decedent. Judgment for plaintiff, and defendant brings error.
Affirmed.
A. N. Breckinridge, Peter Barrow, Jr., and Larry M. Andrews, for plaintiffs in error.
Wendell W. Hoover and G. C. Belknap, for defendant in error.
Lovins, President:
This action was commenced in the Circuit Court of Webster County by Nona Utt, Administratrix of the Estate of Burl Utt, deceased, against John Herold, Jr., and Harry Tucker, to recover damages for the death of her decedent caused by the alleged wrongful acts of defendants. The jury, after hearing the evidence and instructions of the court, returned a verdict for plaintiff in the amount of eight thousand dollars. The trial court overruled motions in arrest of judgment, to set aside the verdict and grant defendants a new trial, and rendered judgment on the verdict. This writ of error was granted to review that judgment.
On the night of the fatal accident defendants entered an automobile parked in the Town of Webster Springs belonging to Herold, and, after listening for a short time to the radio in the automobile, mutually agreed to travel to the top of a mountain near the town. Tucker, being in the driver's seat, drove the automobile, and Herold sat by his side. They travelled a short distance on State Route 20 to the point where plaintiff's decedent was struck and killed almost instantly.
Plaintiff's decedent was thirty-six years old and lived on State Route 20. He was on his way home from the Town of Webster Springs, in company with his daughter and another young woman. In going home he and the two women, just prior to the accident, travelled along State Route 20 on the left side of the road, meeting vehicular traffic going in the opposite direction. The paved portion of the road was approximately fifteen feet in width at the point of the accident, with a berm on the left side.
Evidence in behalf of the plaintiff tended to show that decedent was standing on the berm of the road, about two feet from the left side of the paved portion of the road, and that the automobile swerved from the right to the left side of the road and struck the decedent, who was standing still, conversing with the young woman who had accompanied him and his daughter from town. His daughter, having gone a short distance beyond the place of accident, did not see the automobile strike her father, nor did the woman with whom decedent was conversing see the vehicle strike decedent as she was looking in the opposite direction at the moment of impact.
The body of the decedent was carried about twentyeight feet along the road and came to rest about seven feet four inches from the left side of the pavement, partly on the berm and partly on a bank. The bowl and stem of a pipe similar to one owned by decedent were found on the left berm of the road and particles of glass, presumably from a spotlight on the automobile, were strewn along the road for a distance of about ten feet. Some broken glass was on the left side of the pavement, but the greater portion was on the left berm.
Defendants did not stop the automobile immediately after the accident, but drove on in the direction they were travelling to a point where they turned the automobile and came back to the place of the accident. Defendants testified that they returned in three or four minutes. Other witnesses testified that defendants did not return until approximately fifteen minutes after the accident.
Defendants admitted that the automobile in which they were riding struck decedent. They testified that decedent and the two women were walking along the left side of the pavement abreast of each other; that the decedent was nearest the center line, and about one foot to the left thereof. Defendant Tucker testified that just before being struck, decedent moved to the right in the pathway of the automobile, and that the accident was unavoidable.
No evidence was offered of the earning capacity or life expectancy of decedent.
Plaintiff introduced in evidence over defendant's general objection an indictment, returned by a grand jury of Webster County, which charged the defendant Tucker with unlawfully and feloniously killing decedent, and an order of the circuit court showing that Tucker, on a plea of guilty to the indictment, was placed on probation for five years. No motion was made to limit the evidence of the indictment and order to defendant Tucker.
The trial court, over objections of defendants, gave plaintiff's instruction No. 1; modified, over defendants' objection, defendants' instruction No. 2; and refused to give defendants' instructions Nos. 4, 5, and 6.
Defendants filed their joint affidavit and affidavits of four other persons in support of their motions in arrest of judgment, to set aside the verdict and grant them a new trial. The joint affidavit of defendants states, in a general way, that defendants were informed that during the trial of the case the jury was given information to the effect that Herold carried public liability insurance on his automobile and that such information influenced the jury. Defendants also state in their affidavit that friends and relatives of some of the jurors had been killed by automobiles, and especially that two of the jurors had suffered loss of relatives by automobile accidents. Affidavits of the other affiants disclosed that four jurors, a short time after the verdict was returned, told the affiants that the jury considered or assumed that Herold was protected by public liability insurance, and that they had determined the amount of the verdict because of such protection. According to one affidavit a juror stated to affiant that "* * * the jury talked it over and would have made it $10,000.00, but the insurance company could have carried the case up or appealed it, and that by making it $8,000.00 they couldn't appeal." No evidence was adduced which tended to show that Herold was protected by public liability insurance. The examination of the jury panel on its voir dire is not made a part of the record. It is likewise not shown by the record that the jury returned a finding for plaintiff for damages without specifying the amount thereof, and that the court sent the jury back to its room to fix the amount of such damages.
The numerous assignments of error made by defendants for purposes of discussion are grouped as follows:
(1) That the verdict is contrary to the preponderance of the evidence; that improper evidence was admitted, and especially it was improper to admit evidence showing the plea of guilty by Tucker to the charge of unlawfully and feloniously killing the decedent; and that the admission in such plea was admissible only as to Tucker and did not affect Herold's liability, and should have been so limited; that proper evidence was rejected; that there was no proof of pecuniary damages; and that there was a variance between the allegations of the declaration and the proof in support thereof.
(2) That the trial court erred in giving plaintiff's instruction No. 1 and modifying defendants' instruction No. 2, and in refusing to give defendants' instructions Nos. 4, 5, and 6.
(3) That it was error to overrule the motion to set aside the verdict and grant defendants a new trial when it was shown by the affidavits, hereinabove mentioned, that the jury assumed that Herold was protected by public liability insurance; that the jury considered matters of law not embodied in any instruction; that the jury had been improperly influenced; and that two of the jurors were prejudiced because of the fact they had suffered the loss of relatives because of automobile accidents;
(4) That the verdict was improper for the reason that the jury having first returned a verdict for plaintiff and against defendants without specifying the amount of damages, were instructed by the trial court that a specific amount of damages should be found, and that the jury then returned to its room and fixed the amount of damages at eight thousand dollars, which, in fact, was tantamount to the return of two verdicts.
The evidence adduced by the plaintiff is sufficient to sustain the verdict, and does not clearly preponderate in favor of defendants. We find no merit in the first assignment of error.
Defendants made a general objection to the introduction of the indictment and the order of the court, and did not move the court to limit the application of the evidence to Tucker. Distinctions have been drawn as to pleas and findings in criminal trials as constituting an admission by the party tendering such plea. A plea of nolo contendere is inadmissible in a civil trial as a declaration against interest, as such plea is not an admission in a true sense. Schad v. McNinch, 103 W. Va. 44, 136 S. E. 865. An order showing conviction...
To continue reading
Request your trial
-
State v. Beck
...bias deriving from a factual situation as tenuous as this. In a civil context, this Court rejected a claim of bias in Utt v. Herold, 127 W.Va. 719, 34 S.E.2d 357 (1945), based upon the circumstances that some of the jurors may have had close relatives die in accidents similar to the one tha......
-
Moore v. Skyline Cab, Inc.
...of a civil action for negligence can not be used in such action as proof of negligence upon the part of the defendant. Utt v. Herold, 127 W.Va. 719, 34 S.E.2d 357; Interstate Dry Goods Stores v. Williamson, 91 W.Va. 156, 112 S.E. 301, 31 A.L.R. 258; Shires v. Boggess, 72 W.Va. 109, 77 S.E. ......
-
State v. Cirullo, 10763
...v. Bowles, 117 W.Va. 217, 185 S.E. 205.' See also Tennessee Gas Transmission Company v. Fox, 134 W.Va. 106, 58 S.E.2d 584; Utt v. Herold, 127 W.Va. 719, 34 S.E.2d 357; State v. Bowles, 117 W.Va. 217, 185 S.E. 205; State v. Price, 92 W.Va. 542, 115 S.E. 393; Davis v. Laurel River Lumber Comp......
-
Bond v. City of Huntington, 14307
...55-7-6 (1931). Under this statute it was not necessary to show either pecuniary loss or dependency in order to recover. Utt v. Herold, 127 W.Va. 719, 34 S.E.2d 357 (1945); Kelly v. Ohio River Railroad Co., 58 W.Va. 216, 222, 52 S.E. 520, 523 (1905). The recovery under this statute was essen......