Venable v. Line

• Decision Date: 07 February 1928
• Docket Number: (No. 6029)
• Parties: Herman Venable, an Infant, Etc., v. Gulp Taxi Line
• Court: West Virginia Supreme Court

105 W.Va. 156

Herman Venable, an Infant, Etc.,

v.Gulp Taxi Line

(No. 6029)

Supreme Court of Appeals of West Virginia.

Submitted January 31, 1928.

Decided February 7, 1928.

1. Process Process Tested July 6, Returnable on First Tuesday in July "Next," Held Not Void or Voidable; Defendant Having Three Days to Appear.

The process in this case tested on July 6, 1926, and made returnable "on the first Tuesday in the month of July, 1926, next" is not void nor voidable. Tuesday, July 6, 1926, being a rule day and giving defendant that day and the two following days as rule days to make his appearance, and the defendant's motion to quash, his plea in abatement and motion to arrest the judgment were properly overruled, (p. 158.)

(Process, 32 Cyc. p. 434.)

2. Trial Instruction, if Jury Found for Plaintiff, They Should Consider Evidence of Health and Condition Before and After Injury Held Sufficiently Hypothetical.

An instruction for plaintiff telling the jury that if from the evidence they should find for the plaintiff which meant, of course, find that he was injured as alleged and not controverted in this case, they should take into consideration all the evidence, facts and circumstances as to his health and condition before and after the injury, was sufficiently hypothetical in form as to fairly submit the questions of fact to the jury. (p. 159.)

(Trial, 38 Cyc. p. 1634.)

3. Damages: Declaration and Proof Showing Bruises and Loss of Eye Justified Instruction on Right to Consider Injury to Health as Element of Damage.

The declaration and the proof being that plaintiff was bruised, sustained the loss of one of his eyes and was otherwise injured, justified the instruction giving the iurv the right to take into consideration "injury to health as an element of damages." By such injuries the plaintiff clearly established the impairment of his health, justifying the charge, (p. 160.)

(Damages, 17 C. J. § 367.)

4. Carriers Carrier Owes to Passenger Duty of Utmost Care and Diligence Compatible With Practical Operation of Vehicle; Carrier Interposing.no J testification for Gross Negligence Omission From Instruction That Passenger Was Entitled to Utmost Care Compatible With Practical Operation Was Not Error.

While it is true that a passenger is entitled at the hands of the carrier or its agent to the utmost care and diligence compatible with the practicable operation of the vehicle, and an instruction should more properly be so limited; nevertheless omitting the words italicized, where the defendant's pleadings and evidence, interposed no justification for the gross negligence of the carrier shown, the omission of the words of limitation will not render the instruction erroneous, (p. 162.)

(Carriers, 10 C. J. §§ 1297, 1474.)

5. Same Where Injury to Passenger Prima Facie Imputed Negligence, Refusal of Instruction That no Presumption of Negligence Arose From Fact of Injury Was Justified; Presumption of Due Care of Traveler at Railroad Crossing Because His Safety is Involved is Not Applicable to Carrier and Passenger.

Where the injuries sustained by a passenger are such that they were not likely to have occurred but for the gross negligence of the carrier, the fact of the injuries will prima facie impute negligence to the carrier justifying the court in refusing to instruct the jury that no presumption of negligence may arise from the bare fact of the injury. The rule applicable to travelers at a railroad crossing is not applicable to cases of carrier and passenger, (p. 163.)

(Carriers, 10 C. J. §§ 1426, 1475.)

6. Same Instruction That Passenger is Presumed to Have Taken Risks Incidental to Automobile Traveling Was Properly Modified by Words "Careful and Prudent Operation Over Road He Traveled."

An instruction proposed by the defendant that plaintiff, as a matter of law, was presumed to have taken upon himself all risks necessarily incident to automobile traveling was properly modified by "careful and prudent operation and transportation over the road on which he was traveling," for a passenger assumes only such risks as are thereby incurred, (p. 164.)

(Carriers, 10 C. J. § 1475.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Raleigh County.

Action by Herman Venable, an infant, etc., against the Gulf Taxi Line. Judgment for plaintiff, and defendant brings error.

Affirmed.

File, Goldsmith & Scherer, for plaintiff in error. Ashworth & Ashworth and Warren Thornhill, Jr., for defendant in error.

Miller, President:

There was a verdict and judgment in this case in favor of the plaintiff for $5,000.00 for personal injuries sustained while a passenger upon the defendant's motor car, being the result of a second trial, the jury having disagreed on the first,

The first question presented relates to the validity of the original process summoning the defendant to answer. The defendant sought to raise this question, first, by motion to quash, second by plea in abatement, and third, and finally, by a motion in arrest of judgment, All these proceedings were predicated upon the same question the supposed invalidity of the process.

The process was tested on the 6th day of July, 1926, which was a Tuesday, and was made returnable '' at rules to be held in the clerk's office of said court on the first Tuesday in July, 1926, next." The declaration was filed on Tuesday, July 6, 1926. No appearance was made by the defendant until on

105 W. Va.

Wednesday, September 1, 1926, at which time its motion to quash the summons as defective was first entered in court. The contention then made by the defendant, as shown by the order of the court was that rules to be held in the clerk's office of said court on the first Tuesday in the month of July, 1926, next, made it returnable by proper interpretation on Tuesday, the 13th day of July, which was not a rule day, and as indicated this was the same contention sought to be pleaded in the plea in abatement and in the motion in arrest of judgment. In our opinion the rulings of the court in overruling the motion to quash, in refusing to allow the plea in abatement to be filed, and in overruling the motion in arrest of judgment were correct and should be affirmed.

It was many years ago decided here that process to commence a civil action returnable to the first Monday in a month as a rule day may be dated, issued and executed on the return clay. Spragins V. W. Va. C. & P. By. Co., 35 W. Va. 139. Tuesday, July 6, 1926, was a rule day, and the fact that the return was tested and made returnable on the same day would not render it void nor even voidable according to the decision just referred to and a proper construction of the writ. It is contended, however, that the word "next" following the words "first Tuesday in July, 1926" changes the effect of this writ. "We do not think it does. The first Tuesday in July, 1926, could not possibly happen except upon that very clay. It certainly could not be construed as Tuesday, July 13, 1926, as defendant's counsel contends. Practically the same question was presented in Town of Point Pleasant v. Greenlee, 63 W. Va. 207. The questions raised in that case were presented after a default judgment. There the writ was tested on the 1st of August and made returnable on the first Monday in August next. The Court held the writ not to be absolutely void since when read in the light of the law as to issuance and return of process, the error was self-correcting, as it appeared that the first Monday of the month therein mentioned was intended. In response to the contention that the writ was void or voidable, it was said: '' We can not say it is void because it can consistently be said to relate, in reasonable and practical construction, to the first Monday in August on which it was isued, and to the two days following that Monday.''

The court below having by its rulings construed the writ as valid and not void or voidable, we are not disposed to reverse it.

The other questions fairly arising on the record involve only the correctness of the instructions to the jury given and refused. At the instance of the plaintiff, objected to by the defendant, the court gave plaintiff's instructions No. 1 and No. 2. By No. 1 the jury were told that if from the evidence they should find for the plaintiff, they should take into consideration all the evidence, facts and circumstances in the case as to the health and condition of the plaintiff before the injury as compared with his then condition in consequence of his injuries, and whether said injury is in its nature permanent, how far the same was calculated to disable him after he became twenty-one years of age from engaging in those pursuits of employments which in the absence of his injury he might have qualified, and also the mental and physical pain and suffering, if any, to which he has been subjected by reason of said injuries, the amount, if any, of any facial or bodily disfigurement to plaintiff's person and injury to his health, and to allow such damages as in the opinion of the jury will be his fair and just compensation, not to exceed the sum sued for. The main objection to this instruction seems to be that the usual hypothetical form was not observed, and did not require the jury to first find the facts of the injury complained of, but the reasonable construction of the charge is that if they find from the evidence that the plaintiff had been injured as he complained, then they should take into consideration and determine the damages from all the facts and circumstances shown in the evidence and the result which might follow. The evidence showed that he had been bruised, and one...