Wilson v. BOYD S. Fleming.

• Decision Date: 22 November 1921
• Docket Number: No. 4263.,4263.
• Citation: 89 W.Va. 553
• Parties: George W. Wilson v. Boyd S. Fleming et al.
• Court: West Virginia Supreme Court

89 W.Va. 553

George W. Wilson

v.Boyd S. Fleming et al.

No. 4263.

Supreme Court of Appeals of West Virginia.

Submitted November 8, 1921.

Decided November 22, 1921.

Submitted November 8, 1921. Decided November 22, 1921.

1. Appeal and Error Judgment Awarding New Trial Reversed Only for Manifest Error.

A judgment awarding a new trial of an action will not be reversed unless it is manifestly erroneous. (p. 557).

2. Damages For Future Permanent Consequences for Personal

Injury Must be Certain, Not Remote or Speculative.

To form the basis of a legal recovery for the future permanent consequences of the wrongful infliction of a personal injury it must appear with reasonable certainty that such consequences will result from the injury. Possible or probable future injurious effects are too remote and speculative, (p. 559).

3. Highways Testimony as to How an Automobile Was Being Driven Just Before Collision Held Admissible.

Where the speed and manner in which an automobile is driven when a collision occurs is one of the issues to be determined by a jury upon conflicting evidence, testimony tending to show that one of the colliding cars was being driven on a public road in a dangerous or uncertain manner or at an extraordinary rate of speed a few minutes before the collision should when offered be submitted to the jury (p.561).

4. Negligence Evidence of Form, er Acts Incompetent.

Evidence of former and remote negligent acts is incompetent to prove whether a person did or did not do the same or similar act of negligence on another particular occasion. (p.561).

5. Time Where Process is Returned on First Monday of March, a Declaration Filed on First Monday in June is in Time.

If a process duly executed is returned at March rules, 1917 to the office of the clerk who issued it, the declaration is filed in time within the meaning of sec. 7, eh. 125, Code, if delivered to the clerk and filed by him June 4, 1917; March 5 and June 4 being respectively the first Monday of each of these months in 1917. (p. 562).

6. Evidence Presumed That a Public Officer Has Performed His Duty.

Unless the contrary clearly appears, the presumption ordinarily is that a public officer performs the duties required of him by law. (p. 562).

7. Same Where Circuit Court Clerk Does Not Dismiss Suit Where Declaration is not Filed in Time, the Presumption is That He Received it Within Statutory Limit. If a circuit court clerk does not dismiss a suit, as he is required to do, if a declaration is not filed in his office within the time prescribed by sec. 7, ch. 125, Code, and if it be questionable whether he received and filed it within the time so required, the presumption is that he did receive and file it within the statutory time limit, there being no clear and convincing proof that it was not so received or filed. (p. 562). (Lively, Judge. absent).

Error to Circuit Court, Harrison County.

Action by George W. Wilson against Boyd S. Fleming and another. A verdict for the plaintiff was set aside, and the plaintiff brings error.

Affirmed and remanded.

James C. McManaway and J. Philip Clifford, for plaintiff in error.

Homer W. Williams, Carl W. Neff, and Melvin G. Sperry, for defendants in error.

Lynch, Judge:

George W. Wilson sued to recover damages for injuries sustained in a collision of an automobile in which he was riding with another operated by an agent of defendants, Boyd S. Fleming and Lloyd W. Groves, doing business as Auto Livery Company. The trial court having set aside as excessive Not. 1921] * Wilson v. Fleming a verdict for $6,000.00, plaintiff brings the case here for review.

At the time of the accident, Wilson in company with Claude Maxwell and two men named Williams were driving from Clarksburg on the West Milford turnpike, their purpose being to examine some standing timber, which plaintiff proposed cutting for Maxwell. The machine in which they were riding had originally been a five passenger touring car, but prior to the accident was converted into a light truck, the body and top having been removed, and a wooden truck body and two bucket seats substituted. Maxwell, the owner and driver, occupied one of these seats and plaintiff the other, the two Williams brothers being seated on the gasoline tank at the rear end of the truck body.

The collision occurred at a sharp turn in the highway, at a point, where, because of a high bank neither driver could see a great distance ahead. The evidence is contradictory as to which, if either, of the drivers was at fault. Maxwell and his companions testify that they were as near the right edge of the road as safety in making the turn would permit, and that their speed could not have been more than eight to ten miles per hour, that defendants' car negligently cut in towards them when the automobiles were but a few feet apart and that it crashed into them at a speed of from 20 to 30 miles an hour. Defendants, on the other hand, insist with equal emphasis that Maxwell's car was not in a condition to be driven upon the highway, and in fact wras so much of a wreck that even its appearance was notice to a passenger of its unsafe condition, that their driver, not Maxwell, was driving at a moderate rate of speed, about twelve miles per hour, when Maxwell "whipped the car around the corner," when it was too late to avoid the accident by driving between Maxwell's car and the bank oh their right.

However contradictory the testimony as to the negligence of the drivers may appear to be, the car in Avhich plaintiff was riding was damaged by the impact and plaintiff was thrown violently to the ground, thereby sustaining injuries more or less severe, and for which the jury compensated him

89 W. Va. in an amount which the trial court deemed excessive and unwarranted by the evidence.

As upon this point, the case is to be considered and determined it is necessary to dwell upon the injuries sustained by plaintiff. Immediately following the collision, he "seemed to be doing an awful lot of complaining about his breathing. He could not hardly get his breath, and when he did get it he hollowed." Some one assisted him in walking to a nearby house, and shortly afterward carried him in another automobile to the hospital in Clarksburg. There an examination by Dr. Haynes, a witness in the case for plaintiff, disclosed that '' He had a fracture of one or more ribs, the upper part of the left side of his chest * * * and lung tissue evi-. dently had been punctured by the ribs more or less at least, and (he) coughed and spit up blood, as I recollect it." His lungs were congested within a few hours after the accident and in a day or two he developed pneumonia, with a temperature of one hundred four and one-half. After eight or nine days in the hospital he removed to a hotel where he remained an additional two weeks, still under the care of a physician, at the expiration of which time he was so far recovered as to permit of his return to his home in Richwood. There he resided one week, after which, with his wife and two children, he removed to the farm of Claude Maxwell near Clarksburg. This was in the fall of 1916 and he continued at Maxwell's throughout the winter, or, according to Maxwell, until corn planting time. During this period he did light work at intervals, feeding cattle, husking corn, etc., but the chief value of his presence, if we may credit Maxwell, arose from the service of plaintiff's wife, who cooked for other employees upon the premises. Subsequent to his residence on Maxwell's farm, plaintiff's place of abode and ability to work are disputed. That he did little, however, seems fairly well established, but whether this abstinence was due, as he claims, to physical disability produced by the accident, or as defendants allege, to natural aversion and indisposition to work, the evidence is inconclusive.

Assuming, however, that his inactivity was the result of the injuries, was not the verdict an inordinate amount? It. was shown in the proof that the plaintiff, prior to this collision was accustomed to receive a wage of $50.00 to $60.00 per month. At this rate, the impairment of his earning capacity during the three years between the date of the accident and the trial could not have caused him a loss of more than $2,-200.00. What then as to the balance of the jury's verdict I True, one injured by the fault of another is entitled to some recompense for suffering and inconvenience, but the facts warrant no such finding on that account. There is. as we see it, but one explanation, that is, that there was an attempt to compensate plaintiff for injuries believed by the jury to be of a permanent character. Can such belief be supported by any proper construction of the facts?

At this ppint, and before answering the query, it is proper to recall the doctrine long since recognized by this and other courts, that an order setting aside a verdict is entitled to peculiar respect. Miller v. Insurance Co., 12 W. Va. 116; Black v. Thomas, 21 W. Va. 709; Beynolcls v. Tompkins, 23 W. Va. 229; Coalmer v. Barrett, 61 W. Va. 237. As it is the province of the trial court alone to view the appearance and conduct of the jurors, parties and witnesses in the trial, the soundness of the above rule is obvious. See Shipley v. Virginian By. Co., 87 W. Va. 139, 104 S. E. 297. In view of this well established practice it is therefore necessary in reaching our conclusion to respect the order of the trial court.

Analysis of the evidence as to the effect of the injury upon plaintiff's physical condition suggests that plaintiff probably relied largely upon the answers to two questions, one directed to Dr. Wilson, and the other to Dr. Haynes. The first of these elicited information as to whether the impairment of the lung tissue was permanent; the answer to which was "I should think so, it has existed now for about nine months, according to my (X-ray) pictures," the other, directed to Dr. Haynes, was: "Do you consider this plaintiff so disabled and so...