Smith v. Slack

26 S.E.2d 387, 125 W. Va. 812, 1943 W. Va. LEXIS 54

• Court: West Virginia Supreme Court
• Decided: June 8, 1943
• Docket: 9434
• Status: Published

Opinions

Rose, Judge:

This action was instituted in the Common Pleas Court of Kanawha County by the administratrix of Henry A. Foss, to recover damages for his death allegedly caused or contributed by the wrongful acts of defendants. Upon the trial, at the conclusion of the plaintiff’s evidence, the court on motion of defendants, excluded the evidence of the plaintiff, directed the jury to find a verdict for the defendants, thereafter overruled the motion to set aside said verdict and rendered a judgment of nil capiat. The Circuit Court of Kanawha County on petition for writ of error found that the judgment of the Common Pleas Court was plainly right, denied a writ of error, and this Court granted a writ of error to review the judgment of the' circuit court.

The declaration alleges that the defendant, J. M. Slack, was the Sheriff of Kanawha County at the time of the incarceration of Foss in the county jail, and that the defendants, William Dyer and Robert Slack, were deputy sheriffs, Dyer being jailer and Slack assistant jailer.

The plaintiff’s claim is that her decedent, while insane, was held in the county jail of Kanawha County, in custody of the sheriff and the two deputies, during which incarceration he was the victim of neglect, mistreatment and abuse which caused or at least contributed to his death.

If the evidence of plaintiff is not sufficient to support a verdict, had one been returned in her favor, the action of the court is without error. On consideration of such motion it is the duty of the trial court to consider all inferences which the jury could justifiably draw therefrom. Estep v. Price, 93 W. Va. 81, 115 S. E. 861; Jameson v. Norfolk & W. Ry. Co., 97 W. Va. 119, 124 S. E. 491; Fischer v. Clark, 110 W. Va. 420, 158 S. E. 504; Lewis v. State Automobile Mutual Ins. Co., 115 W. Va. 405, 177 S. E. 449.

The duties of the sheriff as jailer of the county are well defined by Code, 7-8-2, in the following pertinent language: “ * * * He shall keep the jail in a clean and sanitary condition, and shall furnish each prisoner with wholesome and sufficient food, and with clean and sufficient bedding. The jail shall be heated when proper. When any prisoner is sick the jailer shall see that he has adequate medical attention and nursing, and so far as possible keep him separate from other prisoners. A failure on the part of the jailer to perform any of the duties herein required with respect to any prisoner in his jail shall be a contempt of any court of record under whose commitment such prisoner is confined, and shall be punished as other contempts of such court”. The duties thus imposed are ministerial, involving no discretion on the part of the jailer, and imposing a liability for the nonperformance or the negligent performance thereof. Clark v. Kelly, 101 W. Va. 650, 133 S. E. 365, 46 A. L. R. 799; State v. Conley, 118 W. Va. 508, 190 S. E. 908.

In order properly to appraise the question at issue, a detailed recital of the evidence is proper. Foss, residing in Akron, Ohio, was in Charleston engaged in the business of photographing customers of merchants for advertising purposes. He was a guest at the Lincoln Hotel. On the evening of May 2, 1938, the manager of the hotel met Foss on the street and talked with him, at which time Foss asserted that he expected to acquire great wealth. About seven o’clock of the same evening, he saw Foss at the Lincoln Hotel, where he was talking to some men about his possession of great wealth and was detailing large schemes for improving parts of the city. Foss was not violent, but the manager of the hotel, fearing that he would become so, called a city policeman who persuaded Foss to accompany him under the pretense of finding á larger audience. The policeman, in fact, took Foss to the county jail, where he was incarcerated and detained until his death on May 16, 1938.

Upon Foss’s being confined in the county jail, the manager of the hotel wired his wife to come to Charleston, which she did. She made an effort to see her husband but was not permitted to do so, and, being in straitened financial circumstances, she returned to Akron,- Ohio, to arrange for his transfer to that place, and did not return until after the death of her husband. At the time Foss was placed in the jail he weighed approximately one hundred sixty-five pounds; at the time of his death one hundred thirty pounds. On examination of the body after his death, it was found that he had a bruise on his neck and abrasions 'On the side of his face, and that he was very much emaciated.

Vincent Elkins, a “trusty” in the jail, on a charge of larceny, testified that Foss was first put in a padded cell and later transferred to another part of the jail; that he was naked during the time; that his cell was dirty; that the bed of the cell worked on hinges on the side of the cell wall, and was tied up so that he could not get it down; that Foss was required to sleep on the wet floor, although the witness says he never saw Foss lying on the floor; that when the witness first saw Foss he weighed around one hundred sixty-five pounds; that on one occasion he saw Foss’s hands tied on the outside of the bars of the cell, at which time Foss was naked. Elkins further testified that there was a bad odor in the cell where Foss was confined, and further that he never saw a doctor in Foss’s cell except the one who examined Foss to determine his mental condition. However, the opportunities of this witness for close examination and observation of the cell were not good.

Raymond Miller, another inmate of the jail during the time Foss was confined therein, states that the condition of the cell where Foss was confined was bad; that there was a dirty mattress on each bed or “bunk”; that Foss did not have any place to lie down during the day, the “bunk” being fastened up on the wall, for the reason that Foss was accustomed to “banging the bunks, making noise”; that he saw Foss lying on the floor and that the floor was damp; that the weather was cold during the time Foss was in jail; that Foss was naked and shivering; that he refused to eat and apparently had a fever before he died; that three or four days before Foss died the witness called for a doctor several times; and that on the morning Foss died he was sitting on the commode, looking pale, whereupon witness told the jailer that there was no use to call a doctor, but to call an undertaker. *

Herbert Romberg, another inmate of the county jail, testified that Foss used the floor of his cell for a toilet, taking water from the commode and throwing it on the floor; that he made noise with the bunks and that Jack King and Rufe Clark tied the bunks up, after which they were never let down; that the cell were Foss was located was cold, the witness using two blankets in his own cell; that Foss ate very little; that he was served beans and cornbread and sometimes a slice of white bread; that the food was not good; that Foss was free except one time when he was tied to the bars of his cell; that he was always dipping water out of the commode and drinking it; that the witness and Raymond Miller both tried to get a doctor three or four days before Foss died; that they found Foss dead sitting on the commode, whereupon they called the jailer, who directed the removal of his body from the cell. The undertaker who embalmed the body of Foss testified that he recalled no evidence of bruises on his body.

During the time Foss was confined in jail the temperature in the City of Charleston, at a point other than the jail, from May 2 until May 16, showed a maximum temperature ranging between 89 and 62° Fahrenheit, and minimum temperatures ranging from 37 to 60° Fahrenheit.

Dr. J. Hudson Robinson, a physician and surgeon, engaged in the general practice of medicine, testified as an expert to a hypothetical question only, not having examined the patient, that having regard to Foss’s age, his mental condition, his refusal to eat, and the condition of his confinement in the jail, his death possibly resulted or was hastened by such conditions of his confinement.

The statement of the trial judge upon his sustaining the motion to direct a verdict for the defendants is in the record and is as follows:

“The Court sustains the motion. It is the opinion of the Court that the burden is on the plain tiff to prove that the death of the decedent resulted from the treatment which he received at the hands of the defendants, and that they have failed in carrying that burden. A mere possibility that this treatment caused the death is not sufficient and is not even prima facie. For that reason, the Court feels it its duty to instruct the jury to find a verdict for the defendants.”

It thus appears that the court’s action was based on the assumption that, since the only physician who testified went no further than to say that it was “possible” that the death resulted from the wrongful acts testified to by the plaintiff’s witnesses, the case failed. This holding would have been entirely correct if there was in the case no other competent evidence of the cause of death. Hayzlett, Admr’x. v. Westvaco Chlorine Products Corporation, 125 W. Va. 611, 25 S. E. 2d 759, decided by this Court May 11, 1943.

But expert evidence is not always necessary to prove the cause of death. Courts and juries may take into consideration the facts with which all mankind are familiar. It would not be necessary to call an expert to advise a jury of the cause of death where it appears without dispute that the decedent was blown to pieces by an explosion of dynamite, or had been run over by a train, or had been shot through the head with a pistol. Common knowledge and common sense do not depart from a man upon his entering a jury box.

As the record now stands, the defendants are shown to. have neglected and mistreated the deceased grossly. The statutory duty of the sheriff to the decedent is plain and imperative. If the evidence in the record is to be believed the defendants did none of the things required by the statute. The decedent was unquestionably sick; other prisoners could recognize this fact and repeatedly requested the jailer to procure a doctor for him but none was ever furnished. This sick man was supplied only with the coarse, regular food of well prisoners, of which he ate but little and infrequently. His cell was not kept heated or sanitary; filth and excreta accumulated and was only partly removed, the window being kept open day and night to relieve from the stench. He was continually unclothed day and night, while the temperature was such at times as to require a normal prisoner to sleep under two blankets. He had no medical attention or nursing whatever. Because he made noise with his cot, trusties tied and kept it against the wall, so that it could not be used. A “kangaroo court” on at least one occasion tied his arms to the bars of the cell in order that he might not make a noise. He came into jail physically in good condition, weighing 165 pounds. At the end of fourteen days he was dead, weighing only 130 pounds. No cause of death other than his neglect and abuse by the defendants is shown by the evidence.

Can we say that the jury, as men of average sense, would not be able to find any causal connection between the conditions under which this man was confined and his death? Would they not know, aside from the opinion of any witness, expert or lay, that such exposure, deprivation and abuse would inevitably affect the physical body of any victim, and, whether the sole cause of his death, would necessarily weaken and injure him so that he would be more susceptible to death from any subsequent cause? Direct testimony, expert or otherwise, is-not always necessary to prove the causal connection between the negligence or wrong of a tortfeasor and the injury suffered by his victim. Circumstantial evidence may be sufficient. Willis v. Norfolk and Western Railway Company, 96 W. Va. 646, 123 S. E. 585; Robertson v. Weingart, 91 Cal. App. 715, 267 P. 741; Boles v. Hotel Maytag Company, 218 Iowa 306, 253 N. W. 515; City of Ludlow v. Albers, 253 Ky. 525, 69 S. W. 2d 1051; Nealis v. Chicago R. I. & P. Railway Company, 173 Minn. 587, 218 N. W. 125; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S. W. 2d 97. Westerdale v. Northern Pacific Railway Company, 84 Mont. 1, 273 P. 1051; City of Longmont v. Swearingen, 81 Colo. 246, 254 P. 1000. Medical or other expert testimony is not a requisite in such cases. The jury, we think, could have concluded from the testimony adduced, if believed, that the treatment and neglect to which the decedent was subjected caused, or contributed to, his death. The medical witness stated expressly that this was “possible”, but declined to say it was probable, for the reason, as he says, that he did not know. Even if this witness had clearly and distinctly testified that there was no possible connection between the decedent’s treatment and his death, his testimony would not have annihilated the other evidence. He would simply have been one witness whose evidence was to be considered; the other evidence would still have remained for the jury to appraise. Expert testimony does not destroy other competent evidence, nor necessarily control it. Ward v. Brown, 53 W. Va. 227, 44 S. E. 488; Bowen v. City of Huntington, 35 W. Va. 682, 14 S. E. 217; The Conqueror, 166 U. S. 110, 17 S. Ct. 510, 41 L. Ed. 937.

We observe that there is not in the record any clear and direct evidence of the official character of the defendants. No point is made of this fact in brief or argument. Presumably the defendants in error, consider the record sufficient on this point. The defendants, Robert Slack and William Dyer are spoken of by witnesses who were inmates of the jail as deputy sheriffs and jailers, and as exercising authority about the jail. The defendant, J. M. Slack, is merely shown to have been in and about the office of the jail. Clearer evidence that the defendants were sheriff and deputy sheriff, respectively, would have been advisable. But a court may take judicial notice of its own officers. State v. Citizens’ Trust and Guaranty Company, 72 W. Va. 181, 77 S. E. 902; Central Land Company of West Virginia v. Calhoun, 16 W. Va. 361; Dyer v. Last, Adm’r., 51 Ill. 179; Norvell v. McHenry, 1 Manning (Mich.) 227; Bloch v. Crumpacker, 44 Ind. App. 171, 88 N. E. 875; Ames Evening Times v. Ames Weekly Tribune, 183 Iowa 1188, 168 N. W. 106. This rule has been applied directly to sheriffs. Casey v. Bryce, 173 Ala. 129, 55 So. 810; Thielmann v. Burg, 73 Ill. 293; Slaughter v. Barnes, 3 A. K. Marshall (Ky.) 412, 13 Am. Dec. 190; Burrow v. Brown, 59 Tex. 457; Martin v. C. Aultman & Co., 80 Wis. 150, 49 N. W. 749. We are not disposed, therefore, to hold the evidence on behalf of the plaintiff insufficient because of its failure to show more directly that the defendants were sheriff and deputy sheriffs, respectively.

The evidence on behalf of the plaintiff made a prima facie case, and should not have been stricken. The judgment of the Circuit Court and that of the Court of Common Pleas are reversed, the verdict of the jury is set aside and a new trial is awarded the plaintiff.

Reversed; new trial awarded.