88 W. Va. 650 | W. Va. | 1921
This writ of error brings for review a judgment of tbe circuit court of Ritchie County in which C. F. Lowther, in an action of detinue against the Ohio Valley Oil and Gas Co., was adjudged the possession of a No. 24 Star drilling machine and certain other personal property, or if the specific property could not be had, the alternative value thereof as ascertained by a jury, and $2288.00 damages for the detention thereof.
An agreed instruction was given the jury which is as follows : ‘ ‘ The jury are instructed that by agreement between the plaintiff and the defendant, entered into at the bar of the court at the beginning of the trial of this case, it is admitted that the plaintiff was and is the owner of the property sued for and mentioned in the declaration and is entitled to a verdict therefor, or for the value thereof in ease the same cannot be had, and the issues are confined to the question when the unlawful detention from the plaintiff of the property mentioned in the declaration or any part thereof began, the value of the property" detained and the damages, if any, sustained by the plaintiff on account of such unlawful detention; and all questions as to the rent, if anything, to which the plaintiff may be entitled for the use of said property by the defendant prior to the beginning of the unlawful detention and the question of compensation to which the defendant may be entitled for repairs on said property are reserved for future adjudication in the action of assumpsit of the plaintiff against the defendant, now pending in this court.
“You are further instructed that the values to be found by you of the several articles detained, for the purpose of this case are as set forth in the prepared form of verdict agreed upon by the plaintiff and defendant, and submitted to you, but such values are not to be binding upon the parties or to affect their rights in said action of assumpsit.”
In the progress of the trial it appeared from the testimony of the plaintiff that the drilling machine and other equipment was on certain leases which had been transferred to the defendant by plaintiff, and the defendant then claimed that all
The agreed instruction confined the issues to the date when the unlawful detention of the property by the defendant began, the value of the property (which was also agreed upon and given to the jury as agreed values) and the damages, if any, sustained by the plaintiff on account of such unlawful detention. It would serve no purpose to consider the assignments of error upon matters which have been eliminated
After April 1, 1918, there were frequent letters and telegrams between the parties in an effort to effect an adjustment out of court, and evidencing an intention on the part of the plaintiff to resort to the courts if the property was not promptly delivered.
There were two interrogatories propounded to the jury on motion of the plaintiff and objected to by defendant. First. “Did the Defendant unlawfully detain from the Plaintiff the property in controversy prior to the date of the institution of this suit?” Second. “If so, when did the unlawful détention begin?” The submission of these interrogatories is assigned as error. It will be again observed that one of the issues submitted by the agreed instruction was as to when the unlawful detention began. The fact that the detention was unlawful seems to have been agreed upon, and therefore it was unnecessary and improper, but we can see no harm in thus bringing that question to the special attention and finding of the jury. It was harmless error. The plaintiff claimed the detention was unlawful and began on the 19th day of February, 1918, and the defendant claimed it to have begun on May 9, 1918. It was very material for the jury to determine when the unlawful detention began in order to ascertain from what date the damages should accrue. Where interrogatories tend to ascertain and separate one or more facts controlling the judgment such interrogatories should be encouraged and promoted. Peninsular v. Franklin Ins. Co., 35 W. Va. 666.
The following instruction given for the plaintiff is claimed as erroneous: “The jury are further instructed that the
The only other question left open by the agreed instruction was the amount of damages to be assessed. Complaint is made that the jury ascertained and fixed the damages at $4.00 per day from April 1, 1918 to the date of the verdict. The complaint is not based on the amount of the damages, but on the method by which the basis of $4.00 per day was fixed, as disclosed by the affidavits of two jurors. There was evidence on behalf of the plaintiff, which does not appear to have been controverted, that the use of the machine and equipment sued for was worth $12.00 per day, and hence the damages assessed, by whatever calculation, or method arrived at by the jury, are much less than they might have been under the evidence. Had the sum been greater, we do not perceive how the verdict could have been disturbed under this evidence. After judgment on the verdict had been entered and the court had adjourned, but before completion of the bills of exception, two jurors made affidavits to the effect that some members of the jury were in favor of assessing $12.00 per day as damages, and others at less sums, while possibly four were not in favor of allowing any damages, but that- in order to arrive at a verdict it was agreed that each juror should state the amount of damages per day he would assess, and the total divided by 11 (one of the jurors having been excused for cause) should be the verdict, which method was adopted, resulting in a composition verdict of $4.00 per day, and that
Bill of exceptions No. 3 complains of the action of the court in writing in the verdict when returned, in words, the amount of damages fixed by the verdict in figures. The jury had fixed the damages at $2288 (in figures) and the court in writing the amount in words made a mistake and wrote “two thousand two hundred and eight ’ ’, but when his clerical mistake was discovered it was immediately corrected so as to correspond with the figures, before the jury left the court room, and to which correction the jury assented. We perceive no error in this action of the judge in correcting his clerical error. How has the defendant been prejudiced? The exception is extremely technical and without merit.
Exception is made to the form of the verdict because it does not state that the sum of $2288.00 was given as damages for the detention of the property. The verdict reads: “We the jury find for the plaintiff, and fix the value of the property sued for in this action as follows (then each item of property and value is given) And we assess two thousand two hundred and eighty-eight, $2288.00, dollars for the de
Exception is made to the judgment entered as enlarging the vérdiet and not responsive thereto. The judgment is for the possession of the property described in the verdict and if any article cannot be had, then the value of such item of property as fixed and ascertained by the jury; and if none of the property can be had, then the aggregate value of the various items as so fixed, amounting to $5973.00. The fact that a correct addition is made of the value of the various items, thus arriving at the total value, is not enlarging the judgment to the detriment of the defendant. The judgment is entirely consistent with the verdict.
It is claimed that the court improperly overruled a demurrer to the declaration. We cannot find from the record that a demurrer thereto was interposed.
There are many assignments of error which we do not consider as important and others which are rendered unimportant by the agreed instruction.
We can find no error and the judgment is affirmed.
Affirmed.