Riddle v. Baltimore & Ohio Railroad , 137 W. Va. 733 ( 1953 )

Lovtns, Judge,

dissenting:

The facts shown in the record in this case and applicable law are probably sufficient to justify a recovery by the plaintiff; were it not for erroneous rulings during the course of the trial.

Specifically, my disagreement with the opinion of the court rests on two propositions: (1) The admission of testimony relative to the difference in market value of plaintiff’s real estate before and after it was flooded. (2) The refusal to give Instruction Number 8 tendered by defendant.

Before discussing the two specific propositions above stated, I advert to the testimony introduced by plaintiff relative to the amount of rainfall on Bunnells Run as indicated by a “bucket survey”. The testimony of witnesses who relied on the bucket survey clearly indicates that a great part of their testimony is founded on hearsay. One of the answers of one of the witnesses is typical: “Inquiry is made as to their knowledge [residents] of the amount of rainfall that occurred in buckets or any container that may be measured and computed the depth of the rainfall”. It is shown that information was obtained at six points in the West Union Quadrangle. Testimony as to the amount of rain at certain points, marked on a map which was before the jury, shows that the data was accumulated at those points and was based on conditions as observed by persons not present before the court nor subject to cross examination. In justice to the witness, it may be said that it was their official duty to collect such data. I cannot however, escape the conclusion that the witness’ testimony as to the amount of rainfall in the drainage basin of Bunnells Run, occurring on the 24th and 25th days of June, 1950, was founded on data which is more or less inaccurate, but that such survey, being a part of a system of collecting rainfall data, should have been admitted and considered. Notwithstanding the criticism here made, with reference to the type of testimony, as to the amount of rainfall, I would not reverse the judgment in the instant case solely for that reason.

It seems to me that the testimony was not relevant, pertinent nor material to establish liability on the part of the defendant, and had little probative value. But since the jury, and not the court, is the judge of the weight of testimony, it was not error to admit such testimony.

It is true that in the case of Carpenter v. Ohio R. S. & G. Corp., 134 W. Va. 587, 60 S. E. 2d 212, hydrographic charts made by employees or officials of the United States Government were admitted to show the location of the low water mark of the Ohio River. But there is a wide difference between hydrographic charts made after many years of observing and measuring the stages of the Ohio River and a survey made as the one in the instant case for the purpose of ascertaining the amount of one rainfall. Especially is this true when a report is founded on the observation and measurement of persons under no official duty to do so. There is too great an opportunity for error, inconsistency and faulty observation of the persons on whom the verity of the report ultimately depended.

Official reports kept as required by statute in the discharge of a public duty are admissible in evidence. Evanston v. Gunn, 99 U. S. 660, 25 Law Edition 306. But well grounded principles of the law of evidence established as the result of much thought by lawyers and judges of bygone days, should not be violated in the admission of such reports. So far as I have been able to ascertain, no court has gone so far as to admit in evidence any more than an official report per se.

The admission, over' the objection of the defendant, of testimony relative to the difference in market value of plaintiff’s real estate before and after it was flooded, is clearly error. In the case of McHenry v. Parkersburg, 66 W. Va. 533, 66 S. E. 750, it was held that the injury to the real property covered in that case, was temporary and that only temporary damages could he recovered. It was further held in the McHenry case that in an action for recovery for temporary damages, that it was error to admit testimony relative to the difference between market value of the property before it was subjected to the injury and its market value after such injury; that such testimony was inadmissible and if admitted without objection, a verdict based thereon should be set aside. Oresta v. Romano Brothers, 137 W. Va. 633, 73 S. E. 2d 622; Flanagan v. Gregory & Poole, Inc., 136 W. Va. 554, 67 S. E. 2d 865. See Mason v. Bluefield, 105 W. Va. 209, 141 S. E. 782.

As to the distinction between facts which permit a recovery of temporary damages and .those allowing recovery of permanent damages, see Henry v. Ohio River R. Co., 40 W. Va. 234, 21 S. E. 863; Guinn v. Railroad Co., 46 W. Va. 151, 33 S. E. 87; Eells v. Railway Co., 49 W. Va. 65, 38 S. E. 479; Bartlett v. Chemical Co., 92 W. Va. 445, 115 S. E. 451. As to the general rule relative to the measure of damages for temporary injury, see Annotation 87 A. L. R., page 1384, et seq.

“Admission of illegal evidence over objection is presumptively prejudicial and where it does not clearly appear that a verdict against the party objecting was unaffected thereby, a judgment rendered thereon should be reversed and the verdict set aside.” Slater v. Gas Co., 126 W. Va. 127, 27 S. E. 2d 436; Mitchell v. Insurance Co., 124 W. Va. 20, 30, 18 S. E. 2d 803. See Alford v. Railroad Co., 84 W. Va. 570, 100 S. E. 402; Ewers v. Montgomery, 68 W. Va. 453, 69 S. E. 907 and Vol. I, Michie’s Digest, page 458, where numerous cases are cited. But it is not however always grounds for reversal if “it clearly appears from the whole case, including the court’s instructions to the jury, that it could not have produced a different result, and had it been excluded the result would have been the same,” Hubbard v. Assurance Society, 88 W. Va. 361, 106 S. E. 786. But if it is doubtful whether .the admission of illegal evidence is prejudicial or otherwise, such error is sufficient cause for reversal of a judgment. Taylor v. Baltimore & O. R. Co.,, 33 W. Va. 39, 10 S. E. 29. See Neeley v. Town of Cameron, 71 W. Va. 144, 75 S. E. 113 for elaboration of the rule that the admission of illegal testimony is harmless error.

In the instant case, I know of no means by which a reasonably, clear conclusion can be reached that the admission of testimony relative to the difference in market value of plaintiff’s real estate did not prejudice the defendant. From the consideration of such testimony, the jury may have inferred from the testimony relating to the permanent injury of plaintiff’s real estate that the injury was permanent and lasting and could not be repaired. Certainly, there is proper proof in this record as to the cost of repairs of damages to plaintiff’s real estate, but I do not believe that the admission of that testimony cured the error theretofore committed by the trial court in admitting testimony of the difference in market value.

Thq plaintiff tendered and the court refused the following instructions: “Upon the trial of Jury cases, such as the present one, our law contemplates and requires the concurrence or agreement of the minds of twelve jurors before a verdict can be rendered for the plaintiff, and while the jury room is no place for pride of opinion or stubbornness, and it is the duty of jurors to discuss and consider the evidence in a spirit of fairness and candor, and agree upon a verdict, if they can do so without the sacrifice of a conscientious opinion or belief, arising from the law and the evidence, yet each juror should feel the responsibility resting upon him as a member of the jury, and should realize that his own mind must be convinced by a preponderance of the evidence before he can agree to a verdict in favor of the plaintiff; and if any individual juror in this case, after he has duly and impartially considered all the evidence, the Instructions of the Court, the Arguments of Counsel, and, in a spirit of fairness and candor, consulted with his fellow jurors, is not convinced, under his oath, that the plaintiff, Collie T. Riddle, has proved the material allegations of his Declaration, by a preponderance of the evidence, such juror should not agree to a verdict in favor of said plaintiff, for any sum of money, even though some or all of the other jurors be of a different opinion.” The instruction just quoted was not covered by any other instruction given the jury.

An examination of this instruction and pertinent cases decided by this court discloses that such instruction has been approved in this jurisdiction. State v. McKinney, 88 W. Va. 400, 106 S. E. 894, the 7th point of the syllabus is as follows: “An instruction on the subject of the legal requirement of unanimity of the jury in the finding of a verdict, which, if given, would advise the jury that, if any juror, after due consideration of the evidence and consultation with his fellows, has reasonable doubt of the guilt of the accused in a criminal case, it is his duty not to surrender his own convictions, simply because the other jurors are of a different opinion, is correct, and should be given upon request, unless its subject is covered by some other instruction given in the case.” State v. Edgell, 94 W. Va. 198, 118 S. E. 144; State v. Noble, 96 W. Va. 432, 123 S. E. 237; State v. Warrick, 96 W. Va. 722, 123 S. E. 799; State v. Joseph, 100 W. Va. 213, 130 S. E. 451.

This court seems to have drawn no distinction between criminal and civil cases. The holdings of this court as then constituted, are set forth in the case of Emery v. Monongahela, 111 W. Va. 699, 163 S. E. 620, in the second point of the syllabus. In the case of Robertson v. Hobson, 114 W. Va. 236, 171 S. E. 745, the second point of the syllabus, Emery v. Monongahela, supra, was disapproved on the ground that it was incomplete. Subsequent to Robertson v. Hobson, supra, this court considered the case of State v. Manstoff, 118 W. Va. 214, 189 S. E. 698, where the authorities are collated and discussed. The court, in the Manstoff case, justified the refusal of instruction as to the unanimity of the verdict of a jury, on the ground that it was covered by another instruction relating to that subject, and given. Though a jury verdict must be unanimous under the rule of common law, an instruction which invites disagreement of a jury should be refused. State v. Sibert, 113 W. Va. 717, 169 S. E. 410. If the requirement of unanimity is embraced in an instruction containing another statement of a legal principle which is erroneous, it should likewise be refused. State v. Zink, 98 W. Va. 340, 128 S. E. 114. Generally, as to the requirement of giving an instruction such as here considered, see Annotation 137 A. L. R., page 394.

It has long been established law in this jurisdiction that it is the duty of a trial court to give a tendered instruction which correctly states the law and is supported by appreciable evidence. Vinal v. Core and Compton, 18 W. Va. 1. See Grace v. Smith, 106 W. Va. 711, 146 S. E. 879, State v. Fletcher, 106 W. Va. 601, 146 S. E. 628. Nor is the weakness of evidence legal ground for refusal. Foster v. Brennan, 113 W. Va. 122, 166 S. E. 845. See Slater v. Gas Co., supra, State v. Gunter, 123 W. Va. 569, 17 S. E. 2d 46.

The first point of the syllabus in Robertson v. Hobson, supra, reading as follows: “An instruction on the unanimity of the jury is ordinarily given as a matter of course. But such an instruction embodies principles so generally understood by jurors and so fully covered by the oath of the juror, that refusal to give the instruction would rarely, if ever, constitute prejudicial error.” Inherrent in the language of that syllabus point just quoted, is the fact that a question of law is submitted to a jury.

It is my understanding that the common law of this state, under Article VIII, Section 21, of the State Constitution, prevails in this jurisdiction until it is changed by statute. I know of no statute which has altered the common law, with respect to unanimity of a jury verdict. Nor do I know of a statute or legal principle permitting the submission of a question of law to a jury.

It seems to me that it would be illogical to say that a proper instruction, supported by evidence, may be refused by a trial court, though not covered by any other instruction, without committing error. A litigant is either entitled to an instruction or a charge, or he is not entitled thereto. I think to vest discretion in the trial court, which in effect the court’s opinion has done, reads into the law of this state a new and strange principle and if such principle should be extended to its ultimate limits, we would reach the point where the giving of any instruction or charge would be discretionary.

Of course it is frequently argued that the giving and refusing of instructions and charges to a jury are a prolific source of error. It is a consumation to be wished that errors and opportunities for error in litigation should be eliminated. Nevertheless, so long as our system of jurisprudence requires the ascertainment, and finding of fact by a body of laymen called a jury and an authoritative statement of law by the presiding officer of a court called a judge, I see no opportunity to eliminate the giving of instructions or charges to juries. I think that an instruction to the jury, on the unanimity of its verdict, even giving the case of Robertson v. Hobson, supra, full force and effect, is required in this jurisdiction and that when such instruction is properly drawn, it is error to refuse it.

I am authorized to say that Judge Haymond joins in the views herein expressed as to the erroneous admission of testimony concerning the difference in market value of plaintiff’s real estate before and after the flood.. But he does not agree, or join in that part of this dissent relating to the “bucket survey”, and the refusal of defendant’s instruction number 8.

For the two reasons herein discussed, I would reverse the Circuit Court of Ritchie County. Judge Haymond would reverse for the reason that the testimony relative to market value of plaintiff’s real estate was improperly admitted.