74 W. Va. 247 | W. Va. | 1914
On a former writ of error we reversed the judgment and awarded defendant a new trial. 68 W. Va. 197. The present writ is to the judgment pronounced against defendant on the second trial.
On the'last trial the jury returned a general verdict for plaintiff for $1,500.00, and also special verdicts or responses to interrogatories as follows: “1. Do you find that the defendant, or either of his bartenders sold or gave to G. B. Duckworth, husband of the plaintiff, spirituous or intoxicating liquors, at the time when the defendant, or such bar tender knew or had reason to believe the said G. B. Duck-worth was in the habit of drinking to intoxication? Answer. Yes. * * * 3. Do you find from the evidence that the plaintiff suffered any injury to her person in consequence of the defendant, or his bar tenders unlawfully selling, or giving to G. B. Duckworth, spirituous or intoxicating liquors, and if yes, in what amount of actual damages? Answer, Yes, $100.00. 4. Do you find that the plaintiff suffered in her means of support, in consequence of the defendant, or his bartender, unlawfully selling or giving to G. B. Duckworth, spirituous or intoxicating liquor, and if yes, what is the amount of actual damage? Answer, Yes, $200.00. 5. If you find for the plaintiff, what is the total amount of com
Defendant’s motion to set aside this verdict was overruled; but the judgment thereon now complained, of was that as the general verdict was in excess of the aggregate of the special verdicts or findings by the sum of $100.00, the court was of opinion to pronounce judgment for $1,400.00-, the aggregate of said special findings, but being also further of the opinion that this aggregate was also $200.00 in excess of the correct legal findings of the jury upon said interrogatories it was considered by the court that plaintiff recover of defendant upon said special findings the sum of $1,200.00, with interest thereon from October 5, 1911, until paid and costs.
The first point of error is that the general verdict is inconsistent with the special findings, and that without a remit-titur entered by plaintiff, the court erred in not setting aside the verdict and awarding defendant a new trial. By section 5, chapter 131, serial section 4909, Code 1913, it is true, if the special findings be inconsistent with the general verdict the former will control. To justify the setting aside of the verdict as an entirety and. awarding a new trial, however, the inconsistency must be such as to wholly destroy the general verdict, and to deprive the court of right to pronounce any judgment on the verdict. But the fact that the aggregate of the special items of damages found are less than, as in this case, or in excess of, the general verdict, does not constitute such inconsistency as to wholly destroy the latter, or deprive the trial court of right or jurisdiction to pronounce judgment for the correct amount to which plaintiff is entitled if that amount can be determined either from the evidence or from special findings, if supported by the evidence in the case; and this is the law whether a remittitur be entered by plaintiff or not. Rodgers v. Bailey, 68 W. Va. 186; Clementson on Special Verdicts, pp. 131, 152, and notes; McIntyre v. Smyth, 108 Va. 736, 750. This rule does not violate another rule that the verdict must be considered as
The next question then is, was the court warranted in reducing 'the general verdict? It is argued that some at least of the special findings are too indefinite and uncertain, and are not so supported by the evidence as to justify judgment thereon. It is apparent that the general verdict for $1,500.00 could not be allowed to stand, for the special findings, covering all the elements of damages relied on or that could by any rules of pleadings or evidence possibly be recovered, .would necessarily reduce the general verdict because they are inconsistent therewith. Another contention is that the special findings are too indefinite to found a judgment on. If there is indefiniteness in these findings defendant is partially responsible for it, because of the form of the interrogatories presented. But are the answers so indefinite as to be uncertain in meaning? According to Clementson on Special Verdicts, 133, it is the duty of the court if possible to harmonize these special findings with each other and with the general verdict. If the general verdict be in favor of plaintiff or defendant, and the special findings are in the aggregate less or more' than the general verdict, and correetible by them, there is not such inconsistency as to destroy the general verdict. In such cases judgment may be entered on the special findings. Clementson on Special Verdicts,' 153, and note.
Within the rules stated we see no difficulty in harmonizing the special findings with the general verdict. It is said in argument that it is impossible to determine whether the $100.00 damages to the person is a part of the $200.00 damages for mental suffering. We think it clear from the sequences of the findings that the $100.00 for injury to the person was added by the jury to the $200.00, found for injury to plaintiff’s means of support, for by the fifth interrogatory the jury plainly added these sums together to make the total, $300.00, compensatory ■ damages found, and if the evidence was such as to sustain these findings, they properly constituted compensatory damages, as distinguished
Again the special findings are challenged as for want of evidence to support them. According to our v.iew these special findings are fully supported by the evidence. As to the damages found for injuries to plaintiff’s person, the evidence is, that plaintiff was required' in the winter time, because of her duty to her husband, to travel back and forth between her home in the country and the place where he was injured, and necessarily detained for treatment for his broken leg, the result of intoxicants sold him by defendant, and that in doing so she was exposed to very inclement weather, had her feet frozen, and otherwise suffered therefrom, and from the inconveniences occasioned thereby, and we think within the- rule laid down in the former opinion in this case, and within the meaning of our statute, this was consequential injury to her person, and upon which evidence the jury was warranted in finding damages. It is said by counsel for the plaintiff that this evidence was admissible as showing cir-
With respect to the damages found for injury to plaintiff’s means of support, it is contended that she is limited to the damages sustained between the date of the injury of her husband, November 16, 1907, and the 28th day of February, 1908, the date of the institution of her suit, and as the highest amount of her damages proved was $25.00 per month, the finding of the jury of $200.00, was grossly excessive and unwarranted. The trial of the action in the last instance was begun on the 30th day of 'September, 1911. Plaintiff’s evidence on this trial shows or tends to show that her husband’s injuries were permanent and that for about a year thereafter he had been unable to furnish her means of support as he otherwise could and would have done.
But it is contended that this evidence of permanent injury and injury to plaintiff’s means of support at the date of the suit was not admissible under the pleadings, permanent injury not being alleged. The second count of the declaration alleges that plaintiff’s husband was confined to his room for more than three months, and still was unable to work, resulting in injury to plaintiff’s means of support. This is not strong as an allegation of permanent injury, but we do not think it was necessary to allege permanent injury. It is alleged that plaintiff was injured in her means of support as a consequence of the unlawful sale of liquors to her husband, resulting in the breaking of his leg, and as plaintiff’s injury to her means of support was likely to continue afterwards as before suit brought, and as she could have but one recovery of consequential damages, evidence of permanent injury to her husband and to her means of support after the suit, as well as before, was provable under the declaration alleging generally injury to plaintiff’s means of support and damages. This proposition we think is supported by Norfolk Railway & Light Co. v. Spratley, 103 Va. 379, 49 S. E. 502; 1 Sutherland on Damages, (3rd ed.) section 106; 3 Id. section 944; Woollen & Thornton on Intoxicating Liquors, section 1070.
And lastly it is said in derogation of the special findings, that the amount found for punitive or exemplary damages is
The next point of error relied on is that the court erroneously rejected defendant’s instruction to the jury number six. The first part of this instruction is clearly covered by defendant’s instructions number four and seven, given, which warn the jury against awarding damages to the plaintiff for injury to the person or property of her husband or to any other member of his family, so that there was no error in noc repeating this warning in the defendant’s sixth instruction. While evidence of injuries to plaintiff’s husband, and the amount of money expended by him, was admitted, it was limited by the court to the question of injury resulting therefrom to plaintiff’s means of support. But this sixth instruction, after containing this warning, would have told the jury, nevertheless, that if they believed from the evidence that plaintiff’s husband had property and means whereby he was able to furnish plaintiff means of support during the continuance of his injuries, and that he did furnish her with means, of support, “in a manner as good as that in -which he had theretofore supported her, that then the plaintiff has no cause of action, for damage to her means of support.” This part of the instruction was evidently predicated on plaintiff’s evidence on cross-examination, admitted over her objection, that her husband had provided certain provisions, such
Lastly, the constitutionality of our civil damage act is again challenged, on the authority of Koerner v. Oberly, (Ind,) 26 Am. Rep. 34. This court, however, in Mayer v. Frobe, 40 W. Va. 246, 252, in uniformity with the rule in most if not all other states, has held the act. constitutional. See 2 Woollen & Thornton on Intoxicating Liquors, section 1031.
Other errors unimportant or covered by the points already adjudicated will not be otherwise noticed. We find no errors, and are of -opinion to affirm the judgment.
Affirmed.