*1 the sum of favor of the judgment this case is remanded to $15,000.00, is reversed and for a trial. new County Circuit Court Fayette
Judgment reversed; granted. trial new Edward Graham Leonard Wriston Orville
(No. 12077) June 1961. Submitted 1961. Decided April *2 Beret, Judge, dissenting. Mann, in error.
Fletcher W. Joseph Campbell Elkins, Palmer, III., & Palmer J. Luchini, for in error. *3 Judge
CalhouN, : plaintiff, instituted an action Graham, Edward Fayette trespass in the case in the on Circuit Court injuries County damages personal sus- to recover for by pedestrian a while 7, 1957, tained on a him on December county public highway in as result his oper- by having owned and been an automobile struck by The trial of the defendant. Wriston, ated Orville in favor in a verdict rendered the case resulted judg- April a final From 20,1959. of the defendant on May 8, 1959, in an entered ment embodied by order and trial court set aside which the pros- the defendant a new trial, awarded the this of error. ecutes writ granted and set the verdict
The trial court aside solely made of certain remarks a new trial because argument during his for the defendant counsel judgment jury. trial in remarks, Such the court, liability implied was covered defendant though, of fact, the as a matter insurance, by such insurance. covered Immediately prior of the trial, commencement requested permission counsel court to amend the declaration to increase the amount for which suit had been instituted. Counsel the de- opposed fendant the motion for leave to amend, following that connection made the statement: employed by “Another reason is that counsel liability company insurance to defend this action and amendment, raise the allowed, would amount coverage sued for above the maximum amount of un- policy, der the defendant’s and that would create potential personal liability upon the defendant himself, # ft ft
Trooper Eoger Depart- Oates, L. a member of the Safety, investigation ment of Public assisted an surrounding consequent the facts the accident and injuries involved this case. In connection with his testimony he as witness identified defendant, of photographs various of the scene the accident. On plaintiff propounded cross-examination counsel for the questions gave following witness fol- lowing answers: I presume And
“Q. you negatives? have Yes, “A. sir. “Q. you pictures And either or the nega- made case,
tives available to the defendant didn’t you?
“A. I made the available to insurance pictures company. was, did
“Q. question make them available My you *4 to the defendant in this case? sir, No,
“A. I didn’t. correct, Mr. Mann had is
Q. pictures; the that sir? Yes,
“A. sir. testimony appears In other such words, from that photographs the were made “available to the insur- company”, Mann ance and that Mr. Fletcher W. “had pictures.” representing the Mr. Mann the was de- person previ- fendant at the and is the who trial, same ously presence oppos- had stated to the court in the of by liability
ing employed counsel that was the he company the carried insurance with which policy testimony of insurance. Because photographs witness to the that were made effect the company”, the counsel “available to insurance presence promptly thereafter, the defendant the out hearing jury, the court to direct a and the moved argument motion, court After the mistrial. on “the answer was refused to direct a simply because mistrial, ’’ responsive question. The court to the carefully an oral admonished to instruction disregard Trooper to the effect the answer Oates ‘‘ photographs to the had been made available that insurance
company.” and oral instruction ad- Such bearing follows: “It has no monition concluded as may any that this be issue before before your your jury, consider- in deliberations and give any you case will not consid- ation of the completely weight dis- You will eration or whatever. (Italics regard supplied.) it.” point Briefly summarizing, therе to case this pertinency may appeared have two facts which that he statement connection. One counsel’s this liability represent insurer been had retained The other was in the case. insured, the defendant pointedly and had fact ruled court had question meticulously jury that the instructed the place proper case and was not no had insurance jury’s In proper back- consideration. for counsel made ground induced the which remarks and award new the verdict trial court to set aside trial. jury, argument point addressed in his
At one that the kind stated: “Is the defendant counsel for willing go to its be that a will of evidence pay you say, have to sir, Wriston, Mr. ‘Yes, room argument point damages?’” in the he At another ##“* and a man in that condition but if a stated: community type can be com in the of that citizen position damages pelled pay man Ed to a *5 something ward on then there’s occasion, Graham this wrong.” portion argument pri of the to which mary objection urged, specific portion is and the which induced the trial court to set aside the verdict and ‘‘ award a new trial is a was as follows: This matter quite great importance deal of to Orville Wriston. day you, you go IAs said the other to some of when your jury you having position to room are in the signed you blank check with his name to it and can any you fill init amount want and he will have to your responsibility pay to it. is This the measure of you case, this and I know I I realize it. know do. particularly keenly
And I know that Orville Wriston realizes it.” quoted immediately
The remarks above made were argument. Promptly near the conclusion of the there- presence hearing jury, after, out of the and counsel moved the court to direct the jury disregard such remarks of counsel. Such mo- orally tion was in- sustained, thereafter the court jury structed and аdmonished the as follows: “Ladies Jury, Gentlemen mo- Court sustains a plaintiff’s attorneys tion made and as a result you you give any of that will instruct not to are part argument consideration whatever jury of Mr. Mann wherein he stated that had a they blank check when went into the room with signed actually Orville name That Wriston’s to it. bearing you has no not this case and must consider ** * give any weight. it or it I will add to the in- just given struction that I have this fur- one regard just ther With statement. what the Court you you, any any told are not to draw inferences of you simply telling you may I kind am from that. argument regard.” support In in that consider his plaintiff’s of the award a new motion to set aside the verdict and urged
trial, that such con- remarks stituted reversible error. frequently improper
This has held that it is Court apprise of the fact that the car- *6 any liability jury in insurance. “The not ries should apprised is manner fact that the defendant be protected by indemnity insurance, such action on ordinarily part will or his counsel notwithstanding the court constitute reversible error, may jury in not consider the same ar instruct to riving Schwartz, at verdict.” Wilkins v. pt. syl., Flanagan Mott, 145 E.
337, S. syl., pt. 331, 114 E. Wesco W. Va. Corporation, S. Leftwich pt. syl., 119 E. 2d 146 W. Va. subject, part an on the 401. following annotation As pages appears 2d at statement in A.L.R. appear “Although 821-22: earlier cases some of the regarding the to a rather narrow have taken view curing regard by to dis error in instructions questions suggestions regard or the evidence, remarks, general appears to be that rule now insurance, indicating anything re the verdict the absence of adversely anything to indicate affected, turned Avas attempts bring persistent objec to and studied jury, prompt action matter before the tionable striking improper defendant’s in references to the coupled with instructions record, from the surance jury disregard admоnishing matters, to suf rights protects ficiently re without the defendant’s ’’ Appleman, quiring judgment. See also reversal of the Section Practice, Law and Insurance Vol. page 512. jury that the defendant
Evidence which informs liability improper against and inadmis is is insured ordinarily only is ir that it not the reason sible any proper case, in the but also to issue relevant may tendency influence the have to of a because against jury the defendant return a to greater return a verdict evidence, and to insufficient in if the returned believed than would be amount pay Lynch have to it. himself would defendant the v. 20 E. 2d Alderton, 446, 452, 124 Va.W. page Conversely, 765. 2d Section 4 A.L.R. Anno. way any apprised in that the not be should liability, only against defendant is not insured be proper any cause such fact is immaterial issue such, tendency the case, but also tbe fact because of may sympathy have to cause the out liability, improperly defendant relieve him from plaintiff following pertinent or to return in favor of the a verdict which inadequate in amount. The state appears Appleman, ment Law and Prac Insurance pages tice, Vol. 21, Section 522-23: “As has previously prone per seen, been the courts are not carry mit a to show that he does not insur interrogation concerning ance even where insurance upon similarly has been made voir It dire. has been *7 held that, the introduction of evidence, a defend may bring jury ant not to the attention of the fact the personally any pay that he is uninsured and must judgment though jury may rendered, even the have questions inferred from other or that such evidence injection defendant was insured. of such And noncoverage may require declaration of mis * # # Conversely, trial. also been that an has held argument by purpose defense of in counsel forming that the no defendаnt has insurance pay personally damages but will have to awarded is ’’ improper. syllabus point In the of of second Lynch ease Alderton, of v. 20 S. E. 2d 657, this stated: “In the trial of an Court action personal damages injury, wrongful for death, property alleged negligence loss, to be the result of of a does the fact that defendant, such defendant does or carry protecting against him
not insurance loss growing operation any out of of vehicle or other instrumentality, damage from the use which the alleged proper resulted, immaterial, is and is not a subject inquiry, either court or counsel, any stage (Italics supplied.) at trial.” standpoint pertinent
From the issues involved a case of nature, the trial of this and from the standpoint litigants fair of a trial for the an before impartial jury, free from extraneous and immaterial the case without
considerations, the should decide or is not сov- reference to is whether the defendant by liability fact that the defend- ered insurance. The brought ant is not should not be insured, therefore, is or any unless manner, to the attention perhaps wherein some in some circumstances unusual appears may appear. relevancy to be basis of the This country general throughout where the rule question by appellate has been courts. discussed Magusaik,
In
case of
82 N. H.
Piechuck v.
testify
permitted
A.
to
holding
liability
In
no
he had
insurance.
this
the court stated:
error,
constituted reversible
procedure
correct
is to exclude all reference to
“The
may
at
fact of insurance
insurance
these trials. The
unavoidably
incidentally
appear.
But even
slight grounds
permitted
or for
should
specious
be
subject
foreign
The whole
reasons.
introduction,
the
ally,
even incident
tried,
issue
be
and its
practicable
be
whenever it is
shоuld
avoided
(Ark.)
Rock,
do so.” To the same effect see Derrick v.
Tourangeau,
116 Vt.
W. 2d
Wilbur v.
726;
Co.,
Branch
565;
v. North
A. 2d
Marshall
Transfer
Cassell,
166
78 Ga.
2d
Tenn.
S. W.
Garmon
App.
Tucker,
Avent
52 E. 2d
*8
Underdahl,
596;
194
140 Or.
207,
Miss.
So.
Davis v.
ella, N. H.
25
242,
81,
13 P. 2d
Fine v. Par
92
A.
362;
(Kan.)
Mansella,
453;
S.
2d
Gilmer v.
Martin
298 W. 2d
121;
v.
Socony
(Tex.)
252;
2d
Griffin,
265 S. W.
21
Marvin,
528,
Mich.
N. W. 2d
Vacuum Co. v.
313
Oil
McCoy, E. 2d 401.
841;
Bloocomv.
improper for counsel to state
Likewise it is held to be
hearing
jury
that the defendant is not
the
imply
against liability or make remarks
insured
to
ing
2d
Wass,
581, 198
fact.
v.
200 Okla.
P.
Bacon
such
Georgeson Nielsen,
260 N.
423;
218 Wisc.
W.
v.
(Kan.) 324
Whitzel,
157;
W. 2d
v.
Wallace
Storage
Murphy
Co.,
&
190 Minn.
v.
Brown
Transfer
Crowley Mailman,
88 N. H.
81, 251 N. W.
by
created
a remark made
273. The error thus
A.
by
may,
counsel for the defendant
under
cir-
some
regarded
prejudicial
cumstances, be
error so
as
by
nature as
to
not
be cured
court’s
instruction
disregard
King
to
(Wash.)
to
Starr,
it.
The situation here is different from those in brought noncoverage which the of the defendant’s fact jury, by to the attention of the either testi mony by present remarks of counsel. In the case, implied to the extent that the remarks of counsel that the defendant was insured, not the full such, to knowl edge contrary contrary of counsel, was to fact, to the only truth of the a to situation. We have been able find dealing precise number limited of cases with that situation. In the case of Huebsch, Scharine v.
Wisc. N. 358,W. counsel the defendant argument contrary jury, in his the fact, to im plied by liability that his client was not covered insur ance. The court held that such remarks constituted charge prejudice reversible error, that grievous complaint therefrom “is more than the usual Pray of like In nature.” case Olson v. 540, frock, disapproved Minn. 94 N. W. 2d court implying, contrary action of counsel to fact, his argument unin defendant was peculiar sured, but, because of the circumstances of prejudicial the case, the error was held to be so require as to revеrsal. In the case of Haid v. Loder Super. stedt, 45 N. J. 133 A. 2d had counsel liability been retained the defendant’s insurer to represent argument him at In the trial. his implying counsel nevertheless made remarks personally any pay his client would have to against objection him. An rendered to such remarks requested. but a mistrial In was sustained was not holding prejudicial that such remarks were require court reversal, nature as to stated: “It seems us that suffered ordi- prejudice narily plaintiff through improper revelation *9 of of absence insurance the coverage by defendant 4-94 disclosure is to even than when the be likely greater is the by of of defendant protection injected said be less hurt-
plaintiff. ful. it cannot be to Certainly this, of the de- than act conveying But more is defendant more by information to the serving the a jury that of when the actor knows condemnation of is untrue. so the inclination implied fact And is such a situation prejudicial a to find error in court stimulated. more readily for mis- is true did not ask plaintiffs “It that was sus- trial when to counsel’s remark objection Nor instruct the to jury tained. did trial judge However, we trans- the statement. think the disregard of of fair was so gression ordinary play rules day on the error another flagrant in court should be plain that basis to the victims given probable their disingenuousness.” adversary’s question bring In an into effort to this difficult proper appraise statement focus and to counsel’s legal light pertinent preceding review repeated: principles, jury is statement made importance quite great deal of “This a matter of is day I other to some of to Orville Wriston. As said the you you, you go your in the to room are when signed position having a with his name blank check any you you fill want to it can amount is pay to it. That the measure of to and he will have you your responsibility I know realize case, particularly I I know that it. know do. And I Orville keenly could it.” That statement Wriston have in realizes any proper relevancy to issue no conceivable had im- a clear and unmistakable the case. It carried required per- plication that would be Orville Wriston against sonally any pay him. It rendered any purpose other of such is difficult conceive is entitled to have remarks. as Just from the fact that he is covered excluded kept entitled have so is insurance, implication any that statement or clear from the liability protected insurance. defendant is peculiar apply in this case in with force This should ruling prior by the of bearing court in the face which, any issue before no “has insurance
495 jury may jury,” or be before the im- clear plication contrary was made, to truth and fact, litigant expected counsel for the who would be to be thereby. frequently benefitеd Too we encounter ef- part convey jury, forts either of counsel directly indirectly, by or or another, one means implication the fact or the that the defendant is or protected by liability is not insurance. Such efforts disap- have encountered the stern condemnation and proval of bench and bar. It better that a mistrial be directed or that a new trial be than awarded that such conduct be or condoned that the ideal of an im- partial endangered jeopardized. be impro
It is true that some cases have
held
priety
injecting
the fact
the defendant’s insur
coverage may
ance
not be cause for
reversal,
prejudice
court can determine
no
resulted there
Lewis,
from.
v.
96
112,
W.
123
Va.
S. E.
Moorefield
564; State ex rel. Harrah v. Walker, 137 W.
849,
Va.
pt.
syl.,
1
E.
Stull,
74 S.
2d
Butcher
140
679;
v.
W. Va.
82
31,
S. E. 2d
Adkins
278;
Smith,
v.
142 W.
772,
Va.
98 E. 2d
In the
S.
712.
instant
it can not
case,
be said
provoked by
that counsel’s remarks were
words or
oрposing
having
conduct of
counsel.
the verdict
Nor,
been for the defendant, can
from
we determine
prejudiced thereby.
record that the
always
“A motion for a new trial is
addressed to the
requires
sound discretion of the trial
and it
court,
stronger
appellate
in an
ease,
court, to reverse an
**
granting,
refusing
order
than one
newa
trial
Varney & Evans v. Hutchinson Lumber & Manufac
turing
pt.
syl.,
Co., 64
417,
W. Va.
6
496 Wheeling Co., 106 Coal W. Va. Co. Public Service syl., pt. 2 145 v. Fire 272; E. Bucher Assn. Philadelphia, 120 E. 196 S. W. syl., pt. 113 Daraban, Rollins v. Va.W. setting of a trial court S. E. 2d 369. action awarding a trial will not be aside a verdict and new wrong.” clearly Mc disturbed this Court “unless Claugherty Tri-City Co., Traction 123 W. Va. pt. syl., Zimmerman, E. Williams v. 2d pt. syl., 2d 785. The trial S. E. judge *11 in than is this Court was better situation in of counsel now determine whether the remarks question аnd in such a man were of such nature made pre to result in ner and under such circumstances as properly judice plaintiff. judge trial is to the in matters, with an area of discretion clothed say wrong clearly in and can he the exer we was cise thereof.
By plaintiff way assignment of of the error, cross granting that asserts the court erred defendant’s “The instruction number which is as follows: seven, you should Court the that believe instructs plaintiff and from the both defendant evidence that neligence guilty con- combined and were of which injuries testified tributed to cause the accident and damages, plaintiff then not recover about, can your duty in favor of the and return it is the instruction defendant, Wriston.” When Orville objection urged only of behalf was offered, plaintiff that instruction was “violative page The reference of Walker Robertson at 574.” Robertson, of was to the case Walker v. at the that 2d 468. Wе observe outset
563, 91 S. E. proximate cause the element of the instruction omits in negligence primary of both to reference negligence plaintiff. contributory negligence aof defendant will It is that fundamental proximate recovery it was the unless not warrant negligence of one more or concurred with cause, creating prox- plaintiff persons than the other injuries imate cause of the is fundamental also involved in It action. negligence part of a regarded preclude he will not as sufficient recovery damages by negligence him unless such damage proximately contributed to cause the of which complains. Perhaps he in this instance the element proximate implied language, cause is “that guilty negligence both and defendant were which combined and contributed to cause the accident * * approve leaving We do not, however, proximate element of It cause to intendment. in so matter fundamental such cases that should be clearly expressly. stated VI, Rule Rules of Prac- only provides “specific tice grounds Trial Courts objection” to instructions will be consid- prior ered. While this case to the was tried effective Virginia date of West Rules of Civil Procedure provides: Trial Courts of we note that Rule Record, party may assign giving “No as error the or the re- give objects fusal to an instruction unless he thereto arguments begun, stating before are distinctly any given as to the matter to instruction, objects grounds objection.” which he and the of his having objection respect, specific There been no in this *12 proximate the of omission the element of from cause the instruction will not be v. considered. Thurston Keathley, 143 W. Va. 105 E. 2d 181. 795, S.
Turning now Robertson, v. the case Walker page page 563, at 91 E. 2d at 468, S. plaintiff’s objec- order to discern the basis of tion to seven, defendant’s instruction number we find that the instruction in that as involved case was ‘‘ contributory you follows: The Court instructs negligence negligent doing plaintiff is the of a act a proximately causing damages which the contributes to you complains. are which she instructed Therefore, you that if from the the find evidence that guilty committing any negligence, was act of how- proximately slight, causing ever which contributed to injuries complains, you the of which she then are not negli
permitted
weigh
degree
or amount
gence
parties,
you
a
must return
of each of the
hut
(Italics supplied).
The
the defendant.”
appearing-
court
out
“must”
trial
in
struck
the word
concluding language
instruction,
sub
“may”
place
and
thereof,
stituted the word
granted
amended. The de
the instruction as thus
urged
fendant
to
in this
that it was error to refuse
Court
original
grant
form
the instruction
its
and
pre
language,
question thereby
raised was
opinion
In the
sented to
this Court
decision.
Court
“The trial court amended the instruc
stated:
substituting
by striking
tion
out
the word ‘must’
‘may’.
instruction
Otherwise,
word
defendant’s
Defendant’s instruction
number was
amended.
binding
a
instruction as offered. The
number was
‘may’
‘must’
for the word
substitution of
word
permissive
a
instruction
made it
instruction. Such
negligent
or
as
acts
as con
offered should have stated the
allegedly
conduct
committed
stituting contributory negligence.
so,
It did not do
properly
Bragg
offered,
and as
refused.
v. C. I.
et
seq.,
Co.,
722, 727,
Whitten
125 W. Va.
Transfer
Dye,
Va.
494, 498,
E. 2d
Lawson v.
106 W.
Henson,
S. E.
theOn basis of the above from language quoted opinion and from the fourth of the point two syllabus, judges dissented. This feature of Walker case of v. Robertson, supra, in a ably discussed student article appearing Law Bev. In 278. gen eral terms, article is critical of the majority opin ion and expresses approval dissenting opinion. Portions of the article are quoted: “There is some West feeling among Virginia attor- that
neys this case is a in the step direction of dis- the doctrine of carding contributory negligence favor of a doctrine of comparative On negligence. face, its it is, does not appear to that far. It how- go ever, a rule, definite departure from the well estab- state, lished in this that contributory negligence the part of plaintiff is an absolute bar to recovery.
[*] # # “The instruction as offered and also as ef- given fectively negatived the idea of comparative negli- gence that it told the were not they permitted to weigh the degree or amount of negli- gence given that parties. If anything, instruction as step goes beyond comparative negligence permitted ignore completely defense of contributory negligence. The direct effect it from a changing instruc- binding permissive tion was to allow the notwithstanding find the plaintiff finding of contributory negligence on the part plaintiff. This is certainly contrary to the mass of cases in this state holding con- is a tributory negligence bar to recovery. Either has, instruction states law incorrectly or the court directly deciding, changed without the law of con- in West tributory negligence Virginia.
« [*] « “The court in held principal case that a bind- instruction based on ing must contributory negligence state the acts specifically or conduct tine this, In constituting contributory negligence. it ap- that the court has new pears made law.”
500 early Washington
In the case of v. The B. & R.O. R. point syllabus, Co., 17 190, W. Va. the fourth of the general the Court held: “It a if not a is universal plaintiff guilty if rule, that, has of con been tributory negligence, he cannot recover.” This rule apply plaintiff injury does not where the of which complains was caused the willful or wanton con Rudolph, duct of the defendant. v. 127 W. Stone Va. pt. syl., apply 32 335, 6 E. 2d S. 742. Nor does a situation which the last clear chance doctrine is properly applicable to the defendant’s conduct. Butch pt. Co., er v. W. & P. Va. R. R’d 37 Va. 3 180, W. syl., 16 E. 110 457; Gould, S. Smith v. W. 579, Va. Meyn Dulaney-Miller 159 E. 92 53, 28; S. A.L.R. v. pt. syl., Co.,
Mоtor
118
4
191
545,
558;
W. Va.
S. E.
Curry,
Barr
364,
v.
137W.
71 E. 2d 313.
Va.
S.
“When
negligent
negligence
and his
concurs and
cooperates
proximate
that of the
as
defendant,
with
’’
injury complained of,
cause of the
he cannot recover.
Ry.
pt.
syl.,
Co.,
522,
Keller v. N. & W.
109 W.
2
Va.
50;
Co.,
156
E.
Casto v. Charleston Transit
120
S.
pt.
syl.,
2
841;
W.
200
E.
676,
Va.
S.
McMicken v.
pt.
syl.,
Province, 141
1
90
273,
W. Va.
S. E. 2d 348.
Gurry,
364,
Barr v.
Va.
71
E. 2d
See also
137 W.
S.
City
313;
Va., Inc.,
Pritchard v.
W.
Lines
syl.,
Ry.
E.
276;
66
2d
Lester v.
& W.
S.
Norfolk
pt.
syl.,
Gray
2
Co.,
434;
163
E.
W. Va.
S.
Ry.
pt.
syl.,
Co.,
v. N. &
130 E.
W.
S.
Overby Chesapeake
Ry.
Co.,
v.
& O.
37 W. Va.
pt.
syl.,
“In
of a
v. 141 90 2d Divita v. 273, W. Va. S. E. Trucking Co., Atlantic E. 2d S. Co., Transit 120 W. 324; 200 Casto Charleston Va. Chesapeake Ry. &
S. E.
Robinson v.
Ohio
subject
Co.,
In
brief,
of complete recognized, neligence contributory “a de- of which relieve defendant of fense, the effect is to injury, merely partial liability all Negligence, pages C.J.S., defense.” 65 Section consistently continued to ad- 746-749. This Court has principle since case of here to that fundamental supra. Cerra, Rоbertson, Brake v. W. Walker v. Wynne, 142 E. 2d Workman v. Va. E. 2d 665. W. told the
The the instant case instruction contributory negli- guilty plaintiff of if the was damages”, gence, and that it “not recover he could “duty” to return of the was perceive no error in the defendant. We favor of the instruction plaintiff if the because, was as offered proximately negligence guilty contributed to which of unqualified imperative, injuries, it was cause his duty a verdict for defendant. to return employed language any the case Walker If supra, such otherwise, was ob- Robertson, indicates viously and unintentional. inadvertent majority opinion in the case of Walker v. Rob supra,
ertson, binding states that a instruction such negligent as the one therein involved must state “the allegedly acts or conduct committed constituting contributory negligence.” as The Court faulty respect, held that the instruction was in this notwithstanding the fact that contained the follow ‘‘ ing languagе: you Therefore, are instructed that if you find from the evidence that guilty committing any negligence, act however slight, proximately causing which contributed * * injuries complains, of which she We do not opinion, any believe that the cases cited in the nor prior authority other decisions of this Court, are proposition. The earliest case cited was Woodell Virginia Improvement v. West Co., 38 W. Va. point syllabus S. E. 386. The third that case jury, is as follows: “When the Court instructs the they hypo that, believe from the evidence certain they thetical facts instructions, mentioned must party plaintiff find for the defendant, as the case *16 may but be, omits from such statement of facts a mate being rial fact, which believed from the evidence would require a different verdict, instruction is errone excepted ground ous if and, to and not cured, for point syllabus reversal.” The second of the of the Dye, case of Lawsоn v. 106 W. 145 494, Va. S. E. jury is as follows: “An instruction which tells the they plaintiff they should find for if believe certain wholly enumerated facts is defective if there is omitted from such enumeration a fact which the evidence strongly prove, require tends to which, true, would principle approved a different verdict.” The same applied Bragg the case of v. C. I. Whitten Co., 125 W. Va. 26 E. 722, 727, S. 2d 217, Transfer 220. legal quoted principles immediately above are recognized consistently by
fundamental and have been this Court. Davis Co., v. Fire Creek Fuel 144 W. Va. 109 S. E. 2d 144. But the instruction involved in
503 the instant case, and that involved in Walker v. Rob- supra, ertson, or did undertake state detail upon finding facts which a for would justified. he Therefore, such instructions do not fall pertaining incomplete within the rule to an statement incomplete hypothesis. of facts, or an factual Closely equally prin related is another well-settled ciple syllabus embodied of the casе of Nichols Raleigh-Wyoming Mining v. Co., 113 W. Va. 169 “Ordinarily, contributory E. 451, S. as follows: when negligence of the on as a defense, is relied prejudicial give it is error to in an jury plain struction which directs the find tiff if certain recited facts are believed spe from the evidence, but which instruction does not cifically negative contributory negligence part on the plaintiff. giving The error involved in the such erroneous instruction is not corrected giving covering of other instructions contributory negligence.” Underwood v. 131 Goff, syl., W. Va. Dodd, S. E. 2d 860; v. Skaff pt. syl., Vaughan E. 2d S. Bragg Oates, 128 W. Va. E. 2d I syl., Co., C. .Whitten Transfer simple requirement E. 2d 217. The these decisions respect “specifical in this is that the instruction shall ly negative contributory negligence part plaintiff.” previously As we have observed herein, language which direct would authorize or contributory to find the defendant on the basis negligence specific, should be clear and and such uncertainty should not be left to mere intendment, speculation. Bragg For instance, Co., v. Whitten *17 Transfer 26 722, 728,
W. Va. contributory negligence S. E. 2d it was 217, 221, held that specifically negatived
was not language you plaintiff “if use believe the negligence.” Dodd, himself without In v. 130 Skaff 44 540, 548, W. Va. S. E. 2d it was 621, 625, held that following expressions were insufficient: “in at- 504
tempting dinary Virginia exercising to cross or- Street was exercising safety”;
care his own “while ordinary exercising ordinary care as aforesaid”; “was attempting Virginia point care at cross Street injury immediately leaving of bus”; after said and exercising ordinary safety “was care for own at his injury”. Payne the time of In the case of v. The Vir- ginian Railway, 131 767, 514, W. Va. 51 E. 775, S. 2d it 518, was held that the words “without fault on his
part” plaintiff’s binding were insufficient in instruc- negative contributory negligence. tion to In Willhide Biggs, v. 118 E. 160, 164, 876, W. Va. it S. language “any negligence was held that helped” bring injuries complained about the of was explicit. sufficiently not clear and But on the con- trary, Pugh, more recent case of Davis v. 569, 579-80, W. Va. 57 E. 2d it was 9, 15, held that plaintiff sufficiently negatived an instruction for the contributory negligence if it stated that the verdict plaintiff should be for the “unless the further plaintiff guilty believed from the evidence that the was negligence proximately which contributed to the injury.” In that connection the held: “The Court ignore contributory instruction did not the defense negligence, specifically negatived any negligence but proximately which contributed to the to the injury, respect subject in that was relating ques- defect which vitiated instructions to this Bragg tion in the cases of v. I.C. Whitten Transfer Company, 125 W. Va. E. 2d and Skaff Dodd, v. 621.” In the S. E. 2d Province, recent case of McMicken v. W. Payne 284-85, S. E. 2d line with Virginia Railway, supra; Bragg v. Whitten Transfer supra; supra, Co., Dodd, it was held that Skaff binding plain- in a instruction offered behalf * * * you “if tiff, words believe driving her own automobile on her own side the road negative in a lawful maimer” were not sufficient tо contributory negligence. point sylla- In the first quoted bus of that case, however, Court the fol-
505 lowing language, which also constitutes second point syllabus of Casto v. Charleston Transit plain Co., 120 W. Va. 200 E. 841: a “When negligent negligence tiff is and his concurs and co operates proximate with that of as a defendant, injury complained cause of the he cannot recover.” of, language quoted The in in the is, substance, embodied controversy except instruction in in this case, proximate omission of the cause, element of which we have referred to earlier herein. sufficiency
We believe, that the of the in however, question by struction now in not to be tested general principles contributory negativing involved negligence. principles normally arise in Such rela plaintiff. tion to of a instructions offered in behalf sufficiency we Bather, believe, the of the instruction in this case must bе tested on the basis the rule that binding directing party, a verdict instruction, if the certain therein believe facts enumerated any are established must not omit evidence, finding, fact or facts essential to such a because binding complete instruction of that must be nature supplemented in itself and can not be to that extent given. Virginia other Woodell instructions v. West Improvement pt. syl., Co., 3 E. Va. 17 S. Dye, pt. syl., 386; Lawson 2 145 W. Va. pt. Nelson, S. E. Lawrence v.
syl., Trial, S. E. 2d Section C.J.S.
page seq. 927 et earlier herein, As we have stated instruction here involved did not undertake to enu upon merate find for one not be said that the of which the should facts basis
party other, and, or the can therefore,
instruction facts omitted essential purview re verdict, to such a within the rule immediately ferred to above. that the court stated,
For the reasons we hold did granting not err in defendant’s instruction number point sylla- To the extent the fourth seven. Robertson, bus the case of Walker v. W. with, principles 91 S. E. 2d is at variance disapproved. herein stated, it is urges also that the court erred over- ruling a motion made behalf of the to ex- *19 testimony Toney Camp- clude the and W. Cletus P. bell, witnesses for the The oc- defendant. accident curred on a “hill” or incline which the defendant’s descending automobile was when the accident occurred. plaintiff The and one of his that witnesses testified at the time he was struck the defendant’s auto- going up mobile, he was incline, the hill or and that paved at the time he was struck he not on was portion highway, walking but rather he was Toney on the berm. Cletus that he, testified as a passenger operated by in the automobile owned and ~W. Campbell, passed P. the scene of the accident on the evening and near occurence; the time of its that he pedestrian paved portion observed a on the highway, walking down the that he hill; “later pedestrian learned” that was Edward Graham; that he never had seen theretofore, Edward Graham pointed but that Graham was out to the witness Monday following Saturday Orville Wriston on the evening on which the accident occurred; that immedi- ately having passed pedestrian, after the witness Campbell passed and P.W. met and an automobile which “later witness learned” was the defend- ant’s automobile; and that he did not know until Mon- day morning there had been an accident. The testimony Campbell substantially of W. P. was Toney. same effect as that of Cletus He testified that previously acquainted he was with Edward Graham; recognize that while he did not him at the he time, recognized him as a “colored man” and he “later plaintiff; learned” it was the and that he did not day (Sunday). learn of the accident until the next No objection testimony Toney was made to the at the being given, during time it was but the direct examina- Campbell, tion of P.W. he was if he asked then knew or passed later learned that the automobile met he objection An was was Orville Wriston’s automobile. objection made to what “he later The was learned”. court ruled sustained. the trial This indicates testify improper concern- that it for the witness respect, ing there what he “later but learned” specific or was no motion exclude to direct made to given disregard testimony the by of this nature Toney Campbell. either At the conclusion defendant’s case counsel chief, ‘‘ following made the motion: The moves the completely the Court to instruct testimony to exclude Toney Campbell, on P. Cletus W. ground their that there no connection between testi- mony (Italics supplied.) The and this accident.” properly testimony, in motion was de- overruled. tailing place presented situation, and the factual time, proper weight circumstantial evidence and its was for jury. *20 plaintiff assignment urges by way
The
also
of cross
rulings upon
that the
in
court erred
certain of its
the
granting
pre
and the refusal of instructions. We have
viously
granting
in
discussed the action of the court
de
perceive no error
fendant’s instruction number 7. We
giving
in the
instruction number 8.
of defendant’s
respective
2 and
Plaintiff’s instructions numbered
ly,
properly
by
which were
were
covered
other
refused,
plaintiff.
given
It is
instructions
at the instance of the
give
though
instruction,
an
error to refuse to
applicable principle if the
correct,
law,
states a
adequately
subject matter of the instruction is
covered
given
by
another instruction or other instructions
Chesapeake
Ry.
jury.
&
v.
read to the
The
Ohio
Co.
393;
E.
Fuel
Johnson,
137 W.
69 S.
2d
United
Va.
2d
Bur
Allen,
88;
75 S.E.
Gas Co. v.
City
Mullens,
W. Va.
83 S. E. 2d
cham v.
Bottling
Logan
Works, 141
Coca-Cola
W. Va.
Keffer
“Duplication
225.
of instructions is
E. 2d
necessary
Cirullo,
neither
nor desirable.” State
syl.,
Sargent,
pt.
93 E. 2d
Davis v.
W. Va.
syl.,
pt.
Affirmed. Berry, Judge, dissenting: major- respectfully
I dissent from the the decision ity opinion I that even case, this because am of jury to the remarks of counsel for closing argument improper, in the the verdict of were not be set favor of the defendant should aside. position the fact that reason for is based on this attorney plaintiff objected remarks, for the to such objection, after which the
the trial court sustained the attorney the court instruct moved prompt- disregard which was remarks, the ly attorney plain- by trial
done court. The for in tiff has obtained all the relief he asked connec- Notwithstanding alleged fact, tion with this error. in favor of the after the defendant, returned the verdict ver-
he then court to set aside the moved the alleged dict because of this same error. assiged by to set
Other errors were apparently found to be verdict, aside but were by However, the trial without merit the trial court. ground solely court set the aside jury. Upon ap- improper of counsel to the remarks majority peal to this the trial Court, court, setting opinion, action of been affirmed its has solely ground improper on the the verdict aside remarks made, argument closing counsel *21 given jury. In the has been words, the the other alleged requested error on full for the same relief by courts. different occasions the two only appellate procedure, errors rules of Under the objections preserved by properly or contained motions by In this will considered this Court. in the record be remarks of defendant’s counsel to the the case, by such error was corrected sustain- error, were ing objection granting motion, instruct and the remarks, by made not to consider such attorney plaintiff during for trial of tbe case. respect ruling the trial court Therefore, with tо the during present no error the trial of this there is case, except for of the trial this Court to the action correct, granting setting and a new court aside the verdict trial. only objection by
Not was the motion made and attorney granted, for af sustained fording all time the remarks the relief asked for at the usually, were in connection made, but it is held with granted such be matters that a new trial will not by improper questions eases where are asked counsel during improper by the trial, remarks made counsel opposing for a counsel did not then ask mistrial during at convenient time the trial the case. McCullough Clark, 61; 88 W. E. Va. S. Lewis, 564; S. E. W. Va. Moorefield Majestic Laundry, 114 Johnson v. W. Va. Steam Laundry Co., 171 S. E. Black v. Peerless Elite 828, 169 E. 447. Va. Corporation, In the recent case v. Wesco Leftwich that 196, 119 E. 2d it was 8. contended objection promptly by because an attorney was not made although for a motion for a defendant, attorney, mistrial not made the matter was preserved appellate, It was held in review. proper was the case that a motion a mistrial disposition proper of such method order to obtain matter. It in the case is true that this Court stated Leftwich anlysis an been of the cases which have reversed mentioned, where insurance was indicates Court procedural raising matter was rel method brought
atively unimportant, long so as it was prejudicial court, attention of the trial because of Schwartz, 101 W. nature such matter. Wilkins v. W. Bartlett, 101 132 E. Atkins v. Va. *22 Fleming S. E. Hartrick, 105 W. Va. S. E. 628. In the by instant ease insurance not mentioned attorney argument for the defendant in his to the jury. merely jury He if stated, that effect, found a pay verdict for the defendant would he have to it, and jury apprized this was done after the had been by question by insurance witness answer to a plaintiff’s attorney. proper A motion for a mistriаl attorney was made for the defendant and over- ruled the trial court. jury
Under the decided if cases, had returned plaintiff, having the defendant, fol- proper procedure, lowed the have could had the ver- nothwithstanding dict set aside, but the defendant, prevailed, mention of insurance, this Court would affirm setting the action of the trial court in aside provokes the verdict. If the action of one counsel remarks of the set ordinarily other, the verdict will not be Corporation, supra.
aside. v. Wesco Leftwich considering In this matter, the trial court and this position Court have taken the that the remarks made jury by to the counsel for defendant, that against returned a verdict the defendant he would pay telling have to it, were tantamount although that the defendant did not have insurance, they already apprized had effect been that he did carry arriving insurance. After at conclusion, majоrity of this Court hold that such remarks are apprizing part same as on the of the I agree the carried insurance. do not position, with this I because do think the remarks prejudicial plain- of defendant’s counsel were proper I ; tiff but believe that verdict was returned, considering all the evidence the case, and that the plaintiff has received a fair trial. See Moorefield supra. Lewis, opinion
I am also of the that in order to avoid con- adopted fusion a uniform rule should be in this State with, including all cover sncli re remarks, remarks gard require insurance, such rule should *23 by party a motion for a mistrial to he made desir ing the relief before a verdict of the will be set granted aside and a new trial There such cases.
ample authority for such course to be followed. John Majestic supra; Laundry, son v. Steam Peer Black v. Laundry supra; less Elite Garibaldi, Co., Allen v.
N.
C.
In the case of Jоhnson v. Steam supra, improper question it was held that an where objection interposed by was asked, and sustained trial court, the verdict would be set aside unless for motion a mistrial made was and overruled. The supra, North Garibaldi, Carolina case of Allen v. Majestic
cited Court the ease of Johnson supra, Laundry, authority ruling Steam as for the objection this matter. In the an Garibaldi case made to question regard with to insurance was sustained court, but no motion a mistrial was made be- alleged improper question ap- cause of the and the pelate grant court refused to reverse the case and proper new trial because motion a mistrial was not made in the trial court.
For the I dissent, reasons stated in this would re- ruling setting verse the of the trial court aside defendant, favor of the reinstate judgment the verdict render defendant. Executor, Etc., et al. Edmiston, Jr., Matthew et al. Wilson, Jesse (No. 12052) April June
Submitted 1961. Decided 1961.