Ware v. Hays
| Decision Date | 08 February 1938 |
| Docket Number | 8678. |
| Citation | 195 S.E. 265,119 W.Va. 585 |
| Parties | WARE v. HAYS. |
| Court | West Virginia Supreme Court |
Submitted January 12, 1938.
Syllabus by the Court.
1. Where a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence, or without any evidence to support it.
2. Upon a motion to set aside a verdict, the evidence of the party prevailing therein will be most favorably considered, and doubts arising from conflicting testimony will be resolved in his favor.
3. Where the verdict of a jury has been improperly set aside by the trial court, this court will reinstate the verdict and render judgment thereon.
Error to Circuit Court, Taylor County.
Action by Ruby Ware against S.D. Hays to recover for services allegedly rendered defendant as a domestic and office assistant. To review an order setting aside a verdict for plaintiff and granting a new trial, plaintiff brings error.
Reversed and rendered.
Jed W Robinson, of Grafton, for plaintiff in error.
G. W Ford and W. Merle Watkins, both of Grafton, for defendant in error.
The plaintiff instituted her action at law in the circuit court of Taylor county to recover of the defendant an amount claimed by her to be due for services allegedly rendered as a domestic and office assistant. In a trial had before a jury a verdict in favor of the plaintiff was returned in the sum of $1,796.98. A motion to set aside this verdict and grant a new trial was sustained by the trial court, to which action plaintiff prosecutes this writ of error. The sole question presented is whether or not the trial court's action on that point should be sustained.
The case is admittedly one of conflicting testimony, and that conflict is narrowed to the question of the weekly or monthly compensation of the plaintiff. There is no conflict as to the period during which the services were rendered, and little if any, as to payments made to the plaintiff therefor.
The plaintiff began the services for which she sues on or about September 1, 1924. She says that she and the defendant, in a conversation in the defendant's office, when only they were present, agreed that her compensation should be $30 per month, and that she worked under that agreement until May 19, 1934; that about a month later she returned to work, temporarily, at an agreed compensation of $3 per week and worked under that agreement until August 31, 1934, on which date she married and finally left the defendant's employ.
The contention of the defendant, as developed by his testimony, is that the plaintiff began work for him some years before September 1, 1924, and on this date some dispute as to wages arose, and the plaintiff was about to leave his employ; that he proposed to her that she could remain and that he would pay her $3 per week, and that she accepted his proposition; he says that this conversation was had at his home in the presence of his wife and two of his nieces, one of whom was only nine years old at the time. The wife and two nieces support the defendant's testimony. It was also shown by the testimony of a Mrs. Kelly, Georgie Pepper, Edith McCauley, and Maude Shields that the plaintiff, during the period when she was working for the defendant, had told them separately and at different dates that she was receiving $3 per week for her work. It appears, however, that her conversation with Maude Shields may have had reference to the period when it is admitted her compensation was $3 per week.
In addition to the oral testimony, the defendant offered in evidence a book showing an account of payments made to the plaintiff, which he says is a book of original entry. In this account, there is the statement that her compensation was $3 per week, which is, of course, a self-serving declaration and need not be further considered. But the account offered in evidence, when examined in connection with the testimony of the defendant, calls for special consideration. The defendant, as above noted, testified that the wages of the plaintiff were $3 per week; that the book account of payments was correct; that about January, 1930, he had a partial settlement with the plaintiff; and that on that date he owed her $31.76. When the account is examined, we find that, according to the statement of payments, he had overpaid the plaintiff $79.36 at the time he says he owed her $31.76. It also appears from this account that payments in excess of $3 per week were made by the defendant in eight of the ten years covered by the account, although not largely so. The actual payments for the several years were: 1924 (four months) $56.56; 1925, $175; 1926, $154.80; 1927, $170; 1928, $179; 1929, $173; 1930, $163; 1931, $172; 1932, $155.56; 1933, $170; 1934 (eight months) $148.
There was testimony as to the work done by the plaintiff from which the jury might have concluded that her work was something more than that of a mere domestic servant; and, although the value of her services was not permitted to be shown, because of the fact that she seems to have elected to rely upon a specific contract, the character of the work performed may have had its influence, as bearing on the reasonableness of the respective contentions as to her compensation. The fact that the plaintiff, over a long period, allowed her account to accumulate without objection, so far as the record discloses, might also have been considered by the jury, and there were other circumstances developed from which the jury could have properly drawn conclusions and inferences in arriving at its verdict.
From the foregoing, it clearly appears that the case was one for jury determination. Conflicting testimony and circumstances only are involved. The question presented is whether or not the trial court was justified in his action in setting aside the jury's verdict. Many pages could be taken in citing authority with respect to the weight that should be given to the verdict of the jury, and to the action of the trial court thereon, but we deem this unnecessary. The rule is clearly stated in St. Clair v. Jaco, 95 W.Va. 5, 120 S.E. 188, 190, wherein this court said:
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