Nibert v. Carroll Trucking Co.

82 S.E.2d 445, 139 W. Va. 583, 1954 W. Va. LEXIS 24

• Court: West Virginia Supreme Court
• Decided: March 23, 1954
• Docket: No. 10619
• Status: Published

Opinions

Haymond, Judge:

This writ of error was awarded to a judgment of the Circuit Court of Cabell County in an action of trespass on the case instituted by the plaintiff Lawrence Nibert who seeks to recover from the defendants Carroll Trucking Company, a corporation, C. C. Carroll, C. I. Carroll, Paul Carroll and Virgil Carroll, partners trading and doing business as Carroll Equipment Company, and Howard B. Thornburg and Claud H. Thornburg, damages for personal injuries resulting from the alleged negligence of the. defendants. By the judgment complained of the court denied a motion of the plaintiff in his own name to set aside a previous voluntary nonsuit and reinstate the case and' awarded costs against the plaintiff.

This Court granted the plaintiff permission to move to reverse the judgment of the circuit court and this case was submitted for decision on February 2, 1954, upon the original record, the motion to reverse, and the briefs and the oral arguments in behalf of the respective parties.

The action was instituted on February 15, 1951, and a declaration was filed at March rules, 1951. An amended declaration was filed on June 16, 1951, on which process was issued returnable to July rules, 1951. After the action was commenced, but before it was matured for hearing and set for trial at the following September regular term of the circuit court, the plaintiff was indicted for a felony and, apparently upon his plea of guilty, was sentenced to be confined in the penitentiary of this State for an indeterminate term of not less than one year or more than ten years. He was confined in the Cabell County jail until September 29, 1951, when he was committed to the penitentiary.

On August 28, 1951, his wife, Lila Nibert, was duly appointed his committee as provided by Section 33, Article 5, Chapter 28, Code, 1931. On September 10, 1951, the action was revived in the name of the committee and was set for trial on October 1, 1951. At that time the committee moved for a continuance on the ground that the plaintiff, because of his incarceration in the penitentiary, was unable to appear and testify upon the trial of the case. The defendants resisted the motion for a continuance and insisted that the case be tried at that time. The court denied the motion to continue the trial of the case and, on motion of the committee, entered an order of nonsuit.

In December, 1952, within three terms of court after the entry of the order of nonsuit, the plaintiff, having been released on parole, in his own name moved the court to set aside the nonsuit and reinstate the case. The defendants resisted the motion and the court, after hearing the testimony and the arguments in support of and in opposition to the motion, by order entered January 9, 1953, denied the motion and entered judgment against the plaintiff for costs. The order recites that the grounds on which the court denied the motion were that the plaintiff was then a convict released on parole and that he had failed to show good cause for' reinstatement of the case. The record does not contain the evidence submitted upon the hearing of the motion and the only supporting facts presented by the plaintiff, as disclosed by the record, are the statements of the plaintiff in an affidavit filed by him that he was unable to appear and testify when the case was called on October 1, 1951, because on the Saturday immediately preceding that date he was transported against his will to the penitentiary to serve a lawful sentence previously imposed upon him; that as his injuries were personal the action could not be tried in his absence and a nonsuit was unavoidable; and that since then he had served his sentence and had been released from the penitentiary.

In support of his motion to reverse the adverse judgment of the circuit court the plaintiff contends: (1) That the plaintiff, notwithstanding his status as a convict released from the penitentiary on parole, is a competent person to move for reinstatement of the case in his own name; (2) that his compulsory absence while confined in the penitentiary at the time the voluntary nonsuit was entered constituted good cause for reinstatement of the case; and (3) that the action of the trial court in denying the motion imposed upon the plaintiff, in a civil case, a penalty for an unrelated criminal offense and constituted cruel and unusual punishment within the meaning of Article III, Section 5, of the Constitution of West Virginia which forbids the imposition of such punishment.

It is evident that at the time the plaintiff made his motion to set aside the nonsuit and reinstate the case he had not completely served his sentence and that he had not been pardoned of his offense. His status then was and apparently still is that of a convict under a partially un-. served sentence of imprisonment for a felony who was free from actual confinement but subject to future confinement for the 'unserved portion of' his sentence in the event he violates the provisions of his parole. His release from actual confinement was not final or absolute btit contingent upon his future conduct with respect to the terms upon which he was paroled. In criminal law á parole is a conditional release. The' condition is that if the prisoner observes the terms of the parole, he will receive an absolute discharge from the remainder of his sentence, but that if he does not comply with the terms of the parole, he will be returned to prison to serve thé unexpired portion of the sentence. Black’s Law Dictionary, Fourth Edition, page 1273.

Section 33, Article 5, Chapter 28, Code, 1931, relating to a committee for a person convicted of a felony and sentenced to imprisonment for more than one year, provides, to the. extent here pertinent, that when any person is confined in the penitentiary of this State, under sentence of one year, or more, his estate shall be committed, by the county court of the county where his estate may be, to a person who, after giving bond, shall have charge and management of such estate until the convict is dischárged from confinement or dies. Section 36 of the same article and chapter of the Code in part provides that the committee may sue and be sued in respect to debts due to or from the convict and in respect to all other causes of action for which the convict might sue or.be shed if no incarceration had taken place; that no action or suit shall be instituted by or against the convict after he is incarcerated; and that all actions or suits to which he is a party at the time of his incarceration shall abate and so continue until revived by or against the committee whose duty it shall be to prosecute, or defend, as the case may be.

From the foregoing statutory provisions it is clear that the suspension or the abatement of the right of a convict, under sentence of imprisonment for one year, or more, to sue occurs only when his confinement begins and’ continues .only while such confinement lasts. In Martin v. Long, 92 W. Va. 624, 115 S. E. 791, this Court held that until a convict’s term of imprisonment has actually begun his right to manage his property and to make contracts is not affected by the sentence of imprisonment. A prisoner who escapes from the penitentiary while serving á sentence of imprisonment is not constructively within the penitentiary while he is at large. State v. Griffith, 88 W. Va. 582, 107 S. E. 302. And a convict who escapes from custody while working in a road gang in another county may not be tried for that offense in Marshall County on the theory that he was constructively confined in the penitentiary when he was at work outside that county. State v. Dignan, 114 W. Va. 275, 171 S. E. 527. In Moss v. Hyer, 114 W. Va. 584, 172 S. E. 795, the opinion contains this language: “It would seem clear that a convict, after discharge, might proceed with the prosecution of a suit which had been instituted on his behalf by his committee. By the same measure it would follow that if a convict had no committee or if the committee had failed to institute an action to redress a wrong occasioned to the convict within the term of his confinement, the latter would himself have the right to institute such action following his discharge if his right so to do were unaffected by the lapse of time.”

The provisions of Sections 33 and 36, Article 5', Chapter 28, Code, 1931, apply to a convict only while he is actually confined in the penitentiary and, as the plaintiff is a convict who, by virtue of his parole, was, at the time of his motion, in fact released from actual confinement, he was entitled to make such motion in his own name and his committee was without authority to make it. To hold otherwise would tend to defeat, in substantial measure, the purpose for which the parole system was established by the Legislature. The purpose of the present parole system, which was created long after the incorporation in Section 14, Chapter 163, Code of 1868, of the original provisions relating to the status of a convict sentenced to imprisonment in the penitentiary for more than one year, is to afford to a person convicted and sentenced to imprisonment an opportunity to reform and, by demonstrating his determination to do so, to become a law abiding member of society from which he was removed by his conviction and sentence. If a convict under sentence of imprisonment while released from confinement on parole does not possess and can not exercise the right to manage his estate, or make contracts, or sue, without the intervention of a committee, he can with difficulty, if at all, support himself, or his lawful dependents if he is a husband or a father as is often the case, and his desire to reform is jeopardized and temptation to resort to improper or criminal conduct may be accentuated beyond his power to resist. The statutes dealing with the status of a convict sentenced to confinement in the penitentiary and with the parole of such convict do not operate to produce any such supposed result. On the contrary a convict under sentence of imprisonment in a penitentiary for one year, or more, while released from confinement on parole, may manage his estate, make contracts, sue in his own name, and, in a case in which he is the plaintiff, make a motion in his own name to set aside a nonsuit and reinstate the case.

Section 12, Article 8, Chapter 56, Code, 1931, is in these words: “Any court may, on motion, reinstate on the trial docket of the court any case dismissed, and set aside any nonsuit that may be entered by reason of the nonappearance of the plaintiff, within three terms after the order of dismissal shall have been made, or order of nonsuit entered; but any such order of reinstatement shall not be entered until the accrued costs in such case shall have been paid.”

In applying this statute this Court has held that it does not'entitle an applicant to have an order of dismissal or nonsuit set aside as a matter of right, State ex rel. The Wilkes Insurance Agency v. Damron, 85 W. Va. 619, 102 S. E. 238; that the trial court is vested with a sound discretion in ruling upon a motion to reinstate, the exercise of which will not be disturbed unless abused, Higgs v. Cunningham, 71 W. Va. 674; 77 S. E. 273; Thomas v. Jones, 105 W. Va. 46, 141 S. E. 434; White Sulphur Springs v. Jarrett, 124 W. Va. 486, 20 S. E. 2d 794; and that to set aside an order of dismissal or nonsuit and reinstate the case it is necessary to show good cause in support of a motion to set aside and reinstate. Higgs v. Cunningham, 71 W. Va. 674, 77 S. E. 273; Thomas v. Jones, 105 W .Va. 46, 141 S. E. 434; Murray v. Roberts, 117 W. Va. 44, 183 S. E. 688; White Sulphur Springs v. Jarrett, 124 W. Va. 486, 20 S. E. 2d 794. The only facts and circumstances offered by the plaintiff in support of his motion to set aside the nonsuit and reinstate the case are that he was confined in the jail of Cabell County after the institution of the action until September 29, 1951, when he was transported against his will to the penitentiary to serve a lawful sentence of imprisonment which made it impossible for him to be present in person when the action was set for trial on October 1, 1951; that he sought a recovery of damages for personal injuries; and that it was necessary for him to be present to testify at the trial. His incarceration and his consequent absence from court when the case was called for trial were the result of his own improper and unlawful conduct. When he committed the crime of which he was convicted he knew, or should have known, that his criminal act would result in a sentence of imprisonment which would necessarily prevent his personal appearance when his case was called for trial. The plaintiff offers no excuse for his failure to present at the trial, by deposition, the same testimony which he could'have given if personally present in court and he does not say that he did not have a reasonable opportunity to introduce his testimony by that method of proof. These acts and omissions by the plaintiff do not show good cause in support of his motion to set aside the nonsuit and reinstate the case or indicate an abuse of discretion by the circuit court in denying it; and in the absence of a showing of good cause in support of a motion to set aside a nonsuit and reinstate the case the ruling of a trial court denying the motion will not be disturbed by an appellate court.

The final contention of the plaintiff that the action of the circuit court in denying his motion to set aside the nonsuit and reinstate the case imposed upon the plaintiff, in a civil case, a penalty for an unrelated criminal offense and constituted cruel and unusual punishment within the meaning of Article III, Section 5, of the Constitution of this State is entirely devoid of merit. The constitutional provision that cruel and unusual punishment shall not be inflicted has no present application for the obvious reason that the refusal of the circuit court to grant the motion neither imposed a penalty nor inflicted punishment of any kind upon the plaintiff who, notwithstanding his status as a convict released from confinement’ on parole, was merely an unsuccessful litigant in an ordinary action at law.

The judgment of the Circuit Court of Cabell County denying the motion to set aside the nonsuit and reinstate the case and awarding costs against the plaintiff is affirmed.

Affirmed.