Stone v. Rudolph , 127 W. Va. 335 ( 1944 )

References to this record are made quite confusing by the fact that the order entered on April twenty-ninth, the day upon which the verdict was returned, makes a matter of record the proceedings of that day and those of April twenty-sixth as well, without referring to April twenty-seventh. The decidedly-better method is to enter a separate order for each day that anything has occurred in the case deserving recognition of record, thus preserving a distinct chronology. Otherwise, as here, accurate, but incomplete, references may confuse.

As to Rudolph's premature so called general appearance and the later entry of his plea to the merits, he asked to have the order corrected so that it would show that instead of appearing "generally", as the order states, for the purpose of raising the question of defective service of process, he appeared "specially" for that purpose. However, the same order shows that after his motion to quash had been overruled, he entered a plea of "not guilty", announced ready for trial, and submitted the matter to a jury. It is plain that he thereby waived all matters concerning defective service of process, as well as mere irregularities in the process itself, both being merged in his plea to the merits. Consequently it is immaterial whether his prior appearance was special or general.

As to his motion to stay the proceedings due to the fact that he was serving in one of the branches of the service named in the "Soldiers and Sailors Civil Relief Act" (they being the Army, Navy, Marine Corps, Coast Guard and Offices of the Public Health Service, formally assigned to duty with the Army or the Navy), although it is true that this record discloses no abuse of discretion on the part of the trial judge in this connection and consequently shows no prejudicial error therein, I nevertheless think that this Court does not reach that question on this record. That for the simple reason that Rudolph has failed to make the required showing that he is serving in a branch of one of the services specifically named in the Act of Congress. He did file an affidavit stating that First Lieutenant Vernon C. Rudolph was a C. A. P., (Civil Air Patrol) Coastal Patrol Pilot on active duty assigned to the 16th Task Force based at Naval Air Station, Manteo, North Carolina, that unit being under the direction Twenty-fifth Air Wing, Anti-Submarine Command, Army Air Forces, 20 Church Street, New York City. No effort was made to connect the Civil Air Patrol with any of the organizations named in the act. Having failed to bring himself within the terms of the act, the trial court was not required to decide and did not decide, nor did the parties base their contentions upon, the extent to which his defense might be materially affected by reason of his service.

I am of the opinion that the majority is not attaching to the verdict the weight to which it is entitled. Clearly, there having been found no error in instructions nor specific rulings of the trial court, the verdict could be set aside only because, in the judgment of the majority, it, as a matter of fact, conflicted, not with the possible, but with the clear, weight of the evidence. In speaking of the verdict against Hopkins, the opinion says that under certain circumstances "a verdict against him can be justified". To my mind, the majority opinion would have "justified" a verdict if it had been for the defendant; but the verdict here was for the plaintiff. This review is not an attempt to justify the verdict, but the verdict against both must stand unless affirmatively shown to involve apparent error.

Again, in speaking of the testimony of Stone, the opinion treats it as entitled to the same weight when unfavorable to his recovery as it is when in his favor. In my opinion, this is not true after verdict, the jury being the judge of the weight to be attached to the statements of fact made by all witnesses, and of the reasons lying behind exaggerations or inaccuracies, and of the effect to be given to surrounding circumstances. Stone was severely injured, having been rendered completely unconscious for a large part of the time immediately following the collision, and semi-conscious for a few minutes. He stated that after having gone through a number of fog pockets not thick enough to interfere with vision, at Oak Hill the Krispy Kreme truck drove into a patch of fog which "seemed to grow in intensity as we entered this very low section; I don't know what the name of it is. This one point seemed to be one pocket of fog, and it seemed to be very light on the outside and growing in intensity as we went onward." R., 116,-7. He states that the collision "happened on the spur of the minute, a matter of seconds". There is other evidence as to the frequency of more dense fog banks in this particular neighborhood during the early hours of the morning than elsewhere on the road to Fayetteville. I repeat, it was the jury's prerogative, under all of the surrounding circumstances, including the fact that during the few moments spent in the fog bank where the accident occurred, Stone's mind ceased to function, to attach what they consider the proper weight to the different parts of his testimony.

Stone had never been on the road before. He knew nothing, and Hopkins told him nothing, about it.

On the other hand, let us look at the testimony of Hopkins, who was not severely hurt nor temporarily deprived of the full use of his faculties. He had delivered upon this same route, with the same truck, at the same hour, one hundred and forty-four times or six times a week during the immediately preceding six months. He had returned, of course, at a different hour, a like number of times. He was thoroughly acquainted with the road and with its condition in good weather and bad. The record does not show whether he had additional daily routes to cover nor the time in which he was scheduled to go from Charleston to Beckley and return, but I think it is not an unwarranted assumption to conclude from the whole proof that he was supposed to make the trip that he was on at the time of the collision in a certain length of time and that he was undertaking to do so at the time of the collision. On his examination in chief Hopkins testified concerning the visibility:

"Q. What was the condition of the weather and visibility that morning, Mr. Hopkins?

A. It was very foggy that morning from Gauley Mountain practically all the way through.

Q. Where did you first run into the fog?

A. About the New River canyon.

Q. How far was that before you got to Oak Hill?

A. It was about — I will say about fifteen miles.

Q. What was the density of the fog? How foggy was it?

A. It was pretty hazardous. You couldn't see part of the time.

Q. You are not talking loud enough.

A. You couldn't see part of the time where you was at.

Q. Now, did that condition exist all the way from New River gorge over the fifteen miles between there and the scene of the accident?

A. Yes, sir.

Q. Please tell the jury at what speed you were driving from Gauley Bridge to the scene of the accident.

A. Well, I was, until I hit Oak Hill, I was driving, I expect, around twenty-five or thirty miles an hour.

Q. And did you continue to drive at about the same speed up to and including the time of the accident?

A. No, sir. I always lower my speed through Oak Hill. They have a twenty-mile speed limit."

Apparently Hopkins' realization of what he said was a continuous hazard due to fog from New River to Oak Hill was his reason for telling Stone, according to Hopkins, that he would give him a ride if Stone wished to "take a chance". The jury could have concluded from Hopkins' experience and this testimony that Hopkins intended to drive through dense fog in disregard of the safety of others on the road or in vehicles, including the one that he was driving, at between twenty-five and thirty miles an hour. According to Hopkins that is exactly what he did. According to Stone's theory, he did not strike dense fog until he reached Oak Hill, where Hopkins had reason to expect it. A circumstance that the jury may have regarded as controlling in deciding whether to believe Hopkins or to believe Stone concerning the location and denseness of the fog and Stone's statement that the pockets of fog they encountered before they reached Oak Hill were quite light compared to the bank of fog they entered at Oak Hill, is the fact that Hopkins remained on the hard surface of the road all the way until he entered Oak Hill. Exactly where he left the surface does not appear. The uncontradicted testimony is to the effect that the Georgia truck was parked entirely off the hard surface, and that Hopkins therefore was not on the road when he struck it. No like circumstance is shown at any other point. Concerning Hopkins' credibility, and comparing his cross examination with his statement in chief, Hopkins had this to say, in part, when examined by the attorney for the plaintiff:

"Q. Now, Mr. Hopkins, do you mean to tell this jury that when you hit that truck over there and knocked it up over a six-inch sidewalk curbing, skidded it forward into a telephone pole, and did all that damage to your truck, that you were traveling twenty miles an hour?

A. I wasn't going over that.

Q. Not going over that?

A. No, sir. I couldn't see to drive any faster.

Q. Couldn't see to drive any faster?

A. That's right.

Q. Well, the fog was the same thickness, I believe you say, over there that it was down here?

A. That's right.

Q. Well, you could see down here to drive thirty miles an hour.

A. Well, that was an open highway down here.

Q. How is that?

A. That was an open highway down here.

Q. That wouldn't affect your ability to see any, would it?

A. It would in town.

Q. How is that?

A. It would in town.

Q. Could you see better down here than you could in town?

A. Sure.

Q. Why was that?

A. Well, there wasn't no lights to blind me or anything.

Q. No lights to blind you?

A. That's right.

Q. If the fog was so thick over there that you couldn't see but about ten feet, there wouldn't be any lights to blind you, would there?

A. Street lights.

Q. I know, but you couldn't see but ten feet, could you?

A. Well, you could always see the light. It will blind you before you can see it.

Q. Well, the street lights over there, then, would blind a person?

A. I imagine they would.

Q. Through that fog. And I believe you tell the jury that that place over there wasn't any worse for fog than any other place through this section?

A. From the New River canyon.

Q. How is that?

A. From the New River canyon that way, it wasn't.

Q. And you had been driving this route six days every week for six months immediately preceding this, and that is your observation, that the fog wasn't any worse any place else than it was over there?

A. That's right.

Q. Or wasn't any worse there than any place else?

A. That's right."

As between Hopkins and Stone and their different versions of the happenings immediately preceding the accident, the jury was justified in disbelieving Hopkins entirely. He being the defendant's principal witness, if that be true, the jury was further justified, if they wished, in concluding that the defense's theory of the basic facts was largely imaginary.

To my mind it is unnecessary in this matter to reach an abstract conclusion as to what constitutes wanton and wilful wrongdoing. The decided cases are completely out of harmony, as can be discovered by examining the cases cited in the Am. Jur. notes to sustain the quotation in the majority opinion. In my opinion the quotation is rather incoherent, as will be found to be the case in the use of all reference works based upon case law when the leading cases are not in agreement. What is frequently spoken of as "wilful negligence" does not require the presence of an intention to injure. Malice is not an element. The conduct must be of known danger to others and in flagrant disregard of its probable consequence upon their safety. In addition to the Todorobak case, see also KeystoneManufacturing Co. v. Hines, 85 W. Va. 405, 414, 102 S.E. 106. What I believe to be a comparatively clear and brief statement will be found in Iaconio v. D'Angelo, 104 N.J.L. 506,142 A. 46, 58 A.L.R. 14, as follows: "Wilful or wanton injury can only be established by showing that one, with knowledge of existing conditions, conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act, or omits to discharge some duty, produces the injurious result. Staub v. Public Service Railroad Company, 97 N.J.L. 297,23 A.L.R. 440, 117 A. 48."

Though based upon a partly different principle, especially where the doctrine of respondeat superior is involved, I have found clarifying the discussion of gross negligence and of wanton and wilful misconduct in the opinions dealing with exemplary damages. See Milwaukee, Etc. R. R. Co. v. Arms, etal., 91 U.S. 489, 23 Law Ed. 374; Baker v. Ohio River R. Co.,51 W. Va. 423, 41 S.E. 148, 90 Am. St. Rep. 808; and 98 A.L.R. 267 and other annotations there cited.

Believing that it has not been clearly shown by the plaintiff in error that the verdict is not supported by sufficient evidence as to Rudolph, I would affirm the judgment of the court below. Judge Lovins authorizes me to say that he joins in this dissent. He and I concur in affirming the judgment against Hopkins.