Koblegard Co. v. Maxwell , 127 W. Va. 630 ( 1945 )

I concur in the result, but the chameleonic rule discussed in the latter part of the opinion and carried into the eighth point of the syllabus has undergone another change. I am in agreement that it is a general rule that where this Court sets aside a verdict returned in a law action on the ground that the evidence is insufficient to sustain it that a new trial should be granted. This general rule is established by the authorities cited in the opinion.

The eighth point of the syllabus herein permits of one exception only to such general rule: Where there is a demurrer to the evidence, judgment should be entered here. Such exception exists. But there is an additional exception eliminated by the eighth point of the syllabus, and which is stated as follows: "When in an action * * * the evidence is such that a verdict for the plaintiff should be set aside, the circuit court, if asked, should direct a verdict for the defendant, and if it refuses, the appellate court will reverse the judgment and verdict, and remand the cause for a new trial, unless this Court can see clearly that the plaintiffcannot better his case upon another trial." (Emphasis supplied.) Hoylman v. Railway Company, pt. 3, syl., 65 W. Va. 264,64 S.E. 536. See Ross v. Railway Co., 76 W. Va. 197, 201,85 S.E. 180; Butcher v. Sommerville, 67 W. Va. 261,67 S.E. 726; Soward v. Car Co., 66 W. Va. 266,66 S.E. 329. The principle for which the Hoylman case is here cited as establishing a second exception to the general rule above noted has not been overruled. The holding here made is in direct conflict with that made in the Hoylman case. Moreover, the rule laid down in this case is so inflexible that it will tend to prolong needless litigation. It is my opinion that where it can be seen clearly that no additional facts can be shown on a second trial making a better case for the plaintiff in an action at law, this Court should enter judgment regardless of whether there has been a demurrer to the evidence in the trial court.