Wilson v. West Va. Amusement Co.

• Decision Date: 02 June 1925
• Docket Number: (No. 5235)
• Citation: 99 W.Va. 290
• Court: West Virginia Supreme Court
• Parties: Mary C. Wilson v. West Virginia Amusement Co.

99 W.Va. 290

Mary C. Wilson

v.West Virginia Amusement Co.

(No. 5235)

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1925.

Decided June 2, 1925.

1. Appeal and Error Verdict for Plaintiff Not Set Aside as Contrary to Evidence, if Weight and Preponderance of

Conflicting Evidence is Not Clearly in Favor of Defendant.

A verdict in favor of a plaintiff will not be set aside as contrary to the evidence where the controlling questions of fact are in sharp conflict, and the weight and preponderance of the conflicting evidence is not clearly in favor of the defendant, (p. 288).

(Appeal and Error, 4 C. J. § 2836).

2. Same Verdict Not Disturbed Because of Admitting Improper Evidence Which Did Not Affect Verdict to Prejudice of Losing Party.

If improper evidence has gone to the jury, but it is apparent that it did not affect the verdict to the prejudice of the losing party, the verdict will not be disturbed for that reason, (p. 292).

(Appeal and Error, 4 C. J. § 2952).

3. Same Verdict of Jury as to Value of Personal Property at Conversion is Generally Conclusive, tinless So Unreasonable

as to Show Passion, Partiality, Prejudice, or Corruption.

The reasonable value of personal property at the time of its conversion not being ascertainable by exact rule of measurement, the verdict of the jury as to its value is generally conclusive, unless it is so unreasonable as to evince passion, partiality, prejudice, or corruption. (p. 294).

(Appeal and Error, 4 C. J. § 2846).

4. Trial If Law is Correctly Stated in Instructions Considered as Whole, Verdict Will Not be Set Aside for Failure

of Some Particular Instruction to State at Length Theory Relied on by One of the Parties.

Instructions must be considered as a whole, and if the law governing the contentions of the parties is correctly stated in them, the verdict will not. be set aside because some particular instruction standing alone does not state at length a theory of the case relied upon by one of the parties, (p. 293).

(Trial, 38 Cyc. pp. 1778, 1779).

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

Error to Circuit Court, Marion County.

Action by Mary C. Wilson against the West Virginia Amusement Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Walter B. Haggerty and Ira L. Smith, for plaintiff in error. John Wyatt and Bollo J. Conley, for defendant in error.

Lively, President:

This suit involves a dispute over the rental and conversion of building machinery owned by plaintiff and used by defendant. Defendant contracted with the Valley Engineering Company to build for it a theatre building in the City of Fairmont. The Engineering Company rented from plaintiff machinery to be used in carrying out the contract. This machinery had been used in railroad construction work, and was second-hand. Its value was fixed in the contract at $3,400.00, the rental to be paid monthly at one-half of one per cent, per day of the agreed valuation. The Engineering Company began the construction, using the rented machinery for about 90 days, when it turned over the building, partly constructed, to defendant, the owner, by contract dated September 13, 1922, which adjusted their outstanding contractual relations. It was provided in this contract that before it should become effective, plaintiff should agree by assignment that the machinery then in use at or on the premises of defendant could be used by defendant for and during such time as it should deem necessary, and at the valuation and rental agreed upon. Defendant took over the rental contract between plaintiff and the Engineering Company by the oral assent of plaintiff. It seems that there was other machinery in use not owned by plaintiff, but probably by the Engineering Company, and plaintiff was to furnish an affidavit of the machinery owned by her so as to distinguish it from the other machinery. This affidavit was made and delivered to Hawkins, who was in charge of defendant's work on the building, on October 19, 1922. It was provided further by the contract that defendant when and at such times as it should decide that the machinery was no longer needed by it, should turn over the same to the proper owners thereof in as good condition as it was then in, ordinary wear and tear excepted, at such places as the owners should decide, within the city limits. Defendant took over the work and plaintiff's machinery, and on the 16th day of February, 1923, notified plaintiff that the machinery was released as of February 14th; that it had finished with and had no further use for designated portions of the machinery, being all of her machinery then being used by defendant. She says she never received notice of release of other portions of the machinery claimed to have been released prior to that time by the defendant. The rents were not promptly paid to her. After the 16th day of February, 1923, the parties attempted to get together and "check off" the machinery released, but failed to do so, each party accusing the other of refusing to meet in order to "check off." The "check off" is explained to mean a custom by which the condition and damage is ascertained when rented machinery is returned to the owner. In the meantime most of the machinery was moved by defendant to a lot owned by the Fairmont Hotel Company and one boiler was left on the back portion of the theatre lot. According to plaintiff's witnesses the machinery had been broken and damaged and almost worn out, some of it gone, and the remainder left exposed to the weather where stored. Failing to receive the balance of her rent, and failing to induce defendant to "check off" the machinery and deliver it to her on her premises at 10th Street where she had storage for it and from which place it had been taken, she instituted this action in assumpsit in July, 1923. The declaration con- tains the common counts and in addition thereto a count for rents unpaid and for the value of the machinery appropriated by defendant to its own use. A bill of particulars filed with the declaration sets out by items the machinery converted, with the value of each, making a total of $2,878.00, and the rents unpaid at $2,631.50, making a total of $5,501.50 for which she seeks recovery. In the items of machinery are included a mounted 20 H. P. boiler which was valued at $800.00 at the time of the alleged conversion. This boiler was taken by defendant, without plaintiff's consent, from her storage at 10th Street, to supply the place of a like boiler belonging to her which was in use in the construction when defendant took over the work, and which became defective in certain particulars and was cast aside as useless, during the progress of the work. Defendant pleaded non-assumpsit. The jury found for plaintiff in the sum of $3,647.59, and the court deeming the verdict to be excessive in the sum of $358.59, plaintiff assented to a reduction of that amount and judgment was rendered for $3,289.00, on May 15, 1925. This writ was granted to that judgment.

Error is assigned: (1) because the verdict is contrary to the law and evidence; (2) because of admitting improper and refusing proper evidence; (3) excessive damages, showing prejudice; and (4) in giving and refusing instructions.

On the first assignment of error it may be noted that the court's order rendering the judgment found that the evidence of the value of the machinery converted would not warrant a recovery for more than $2,878.00. To this sum the rent due before conversion of the property (which rent had been tendered to plaintiff after suit was begun), $225.00, was added, including lawful interest on both items, which interest amounted to $186.00, making the total amount of the judgment $3,289. The balance of the rent due ($225.00) is not controverted; and if the evidence sustains the value of $2,878.00 for the machinery converted (if converted), interest could be lawfully calculated. Does the evidence justify a finding that defendant converted the property to its own use, and if so, does it further justify the value so found?

Wilson says that on February 14, 1923, he wrote to defendant asking for payment of rent for the preceding four months which was in arrears, and on the 16th of that month received an answer from Brady, the Secretary of defendant company, notifying him that the company had finished using the machinery, and asking him to take corporate stock in defendant company in part payment of the rent due. He wrote Brady advising of his inability to take the stock in part payment. He then went to the superintendent of defendant company, accompanied by other witnesses, to "check off" the machinery, and. could not get him to check off and return the property which he directed to be delivered to the storage place on his 10th Street lot. Finally through Brady he arranged another meeting with the superintendent, but was prevented from keeping that engagement by having been called for jury service at Clarksburg. In the week prior to the opening of the theatre he again went to see Hawkins, the superintendent, in company with witnesses Wyatt and Mclntire, when Hawkins was told the machinery belonging to Mrs. Wilson would be taken to the 10th Street lot. Hawkins set the following Thursday to make the check off. They came back as directed, but Hawkins was not there. They then went to Brady, and he informed them that he would 'phone Wyatt when the property would be checked off. This was never done. Not being able to get the property checked and delivered, or to get payment of rent in full for the time it was in use, he sued. Wyatt and Mclntire corroborate most of the material portions of his testimony. Hawkins, while admitting that Wilson, Mclntire and Wyatt came to see him on June 4th for the purpose of checking off the property, says that it was understood that Wyatt would come later but he never did so, and that he was never directed by any one to deliver the property to the 10th Street lot. The...