Appeal from Brooke County; Judge W. Craig Broadwater.
The opinion of the court was delivered by: Miller
1. "'"Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [163 S.E. 767 (1932)]"'. Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 [100 S.E.2d 808] (1957)." Syllabus Point 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).
2. "The relationship of attorney-at-law and client is of the highest fiduciary nature, calling for the utmost good faith and diligence on the part of such attorney." Syllabus Point 4, Bank of Mill Creek v. Elk Horn Coal Corp., 133 W.Va. 639, 57 S.E.2d 736 (1950).
3. "Statutes of limitations are not applicable in equity to subjects of exclusively equitable cognizance. Matters pertaining to fiduciary relationships come within the rule." Syllabus Point 3, Felsenheld v. Bloch Bros. Tobacco Co., 119 W.Va. 167, 192 S.E. 545, 123 A.L.R. 334 (1937).
4. "Where a fiduciary relationship exists and suits are filed to set aside the sale of property, the defense of laches is not usually regarded with favor and the lapse of time is not considered as important as in other cases, and where facts relied on to set aside such conveyance are concealed laches will not as a rule bar the action in such cases." Syllabus Point 7, Work v. Rogerson, 152 W.Va. 169, 160 S.E.2d 159 (1968).
5. "Code, 44-4-20 [now W.Va. Code, 44-4-18 (1982)], does not deprive a court of equity of its general jurisdiction to entertain suits to surcharge and falsify the settlement of the accounts of a fiduciary where such settlement is based upon, or procured by, fraud, actual or constructive." Syllabus Point 1, Haudenschilt v. Haudenschilt, 129 W.Va. 92, 39 S.E.2d 328 (1946).
6. Where an individual occupies a fiduciary relationship to an estate and claims ownership to estate assets that are not conveyed to such fiduciary by the will or by intestate succession, a beneficiary of such estate cannot be charged with knowledge of such claim until an appraisement of the estate's assets has been filed.
7. "Where a valid inter vivos gift is intended, the donor must be divested of, and the donee invested with the right of property in the subject of the gift. Accordingly, the act of donation must be absolute, irrevocable, and immediate, without any reference to its taking effect at some future period and the donor must deliver the property and part with all present and future dominion over it." Syllabus Point 2, Tomkies v. Tomkies, 158 W.Va. 872, 215 S.E.2d 652 (1975).
8. "The elements of proof required to sustain an inter vivos gift of corporate stock are the same as those required to prove a valid inter vivos gift of other personalty." Syllabus Point 3, Tomkies v. Tomkies, 158 W.Va. 872, 215 S.E.2d 652 (1975).
9. "The mere possession of the subject of an alleged gift, unaccompanied by proof of its delivery by the donor to the donee, is insufficient to establish it as a valid inter vivos gift." Syllabus Point 4, Tomkies v. Tomkies, 158 W.Va. 872, 215 S.E.2d 652 (1975).
10. "The standard of evidence required to establish an inter vivos gift must be clear and convincing on every element necessary to constitute the gift." Syllabus Point 5, Tomkies v. Tomkies, 158 W.Va. 872, 215 S.E.2d 652 (1975).
11. "To sustain a parol gift, it must be shown by clear and convincing proof that the donor made delivery and relinquished all dominion and control over the thing delivered, and that the donee accepted the gift." Syllabus Point 6, Tomkies v. Tomkies, 158 W.Va. 872, 215 S.E.2d 652 (1975).
12. "If the subject of a gift be delivered by the donor to a third person with authority to deliver it to the donee, such third person, until the authority is executed by an actual delivery to, and acceptance by the donee, is the agent of the donor, who, until such actual delivery is made, may revoke the authority and take back the gift." Syllabus Point 8, Dickeschied v. Exchange Bank, 28 W.Va. 340 (1886).
13. "If such actual delivery to the donee [does] not take place during the lifetime of the donor, the authority of such third person to deliver the gift is revoked by the donor's death; the property does not pass to the donee but remains in the donor, and goes to his executor or administrator." Syllabus Point 9, Dickeschied v. Exchange Bank, 28 W.Va. 340 (1886).
14. Under Rule 406 of the West Virginia Rules of Evidence, evidence of a person's habit must be shown to be a regularly repeated response to similar factual situations. The trustworthiness of habit evidence lies in its regularity, such that the act or response is shown to be almost semiautomatic.
15. Rule 406 of the West Virginia Rules of Evidence specifically permits habit testimony whether corroborated or not and regardless of the presence of eyewitnesses.
16. Before being admitted, habit evidence is subject to the balancing test contained in Rule 403 of the West Virginia Rules of Evidence to determine whether the probative value of the evidence is substantially outweighed by unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentment of cumulative evidence.
17. "Any distinct act of dominion wrongfully exerted over the property of another, and in denial of his rights, or inconsistent therewith, may be treated as a conversion and it is not necessary that the wrongdoer apply the property to his own use. And when such conversion is proved the plaintiff is entitled to recover irrespective of good or bad faith, care or negligence, knowledge or ignorance." Syllabus Point 3, Pine & Cypress Mfg. Co. v. American Eng'g & Constr. Co., 97 W.Va. 471, 125 S.E. 375 (1924).
18. "'An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [151 S.E.2d 330 (1966)]." Syllabus Point 5, Yates v. Mancari, 153 W.Va. 350, 168 S.E.2d 746 (1969).
19. "It is reversible error to give an instruction which tends to mislead and confuse the jury." Syllabus Point 5, Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905 (1966).
The plaintiff, John T. Rodgers, *fn1 appeals from an adverse judgment in the Circuit Court of Brooke County as to the ownership of 516 shares of stock in the Wellsburg National Bank. Plaintiff asserted that the stock belonged to the estate of his father, Hazlett M. Rodgers, Sr. The defendant below, Hazlett M. Rodgers, Jr., asserted that the stock was his separate property by virtue of various inter vivos gifts from his father. The trial court granted a directed verdict in favor of the defendant as to 336 shares of the stock on the ground that the plaintiff's claim to those shares was barred by the statute of limitations. A jury concluded that the remaining 180 shares belonged to the defendant as well. We conclude that the trial court erred in directing the verdict as to the 336 shares of stock and in giving certain instructions at the trial of the ownership of the remaining stock. Consequently, we reverse the judgment of the circuit court and remand for a new trial.
The salient facts giving rise to this controversy are as follows. In the 1930's, Hazlett M. Rodgers, Sr., began purchasing stock in the Wellsburg National Bank in the names of his then minor children. Over time, he purchased 336 shares of bank stock in the name of the defendant and 180 shares in the name of Mary Rodgers, his daughter. *fn2 Even though the stock was registered in the children's names, Mr. Rodgers, Sr., either retained possession of the certificates or turned over them to his wife for safe keeping. During his lifetime, Mr. Rodgers, Sr., received the dividends from the bank stock and reported them as income on the joint federal income tax return he filed with his wife. When Mr. Rodgers, Sr., died in 1971, Mrs. Rodgers retained possession of the stock certificates and continued to receive and report on her tax return the income from the stock until her death in 1982. Both Mr. Rodgers, Sr., and his wife died intestate.
The defendant has been a practicing attorney in Brooke County for some thirty-seven years and acted as legal counsel for his parents. He handled virtually all of his parents' business affairs and acted as the attorney for their estates. It was not until September, 1983, however, that an appraisal of his father's estate was filed. The defendant's brother, R. Wayne Rodgers, who had been recently appointed administrator of the estate, refused to approve the appraisal because it did not include the 516 shares of bank stock.
In January, 1985, this suit was commenced on behalf of the heirs. The complaint alleged that the defendant had converted the stock and other assets to his own use and sought to compel him to return them to his father's estate. The defendant asserted that his father had made an inter vivos gift to him of the stock and that it was, therefore, not properly includable in the estate.
Trial of the action commenced on November 30, 1988. At the close of the plaintiff's case-in-chief, the defense moved for a directed verdict, partly on the ground that the plaintiff's claims were barred by the statute of limitations. The trial court granted the motion with respect to the 336 shares of stock initially registered in the name of the defendant, but submitted to the jury the question of the ownership of the remaining 180 shares. On December 1, 1988, the jury returned a verdict in favor of the defendant. By order dated February 15, 1989, the circuit court denied the plaintiff's motion to set aside the verdicts. It is from this order that the plaintiff now appeals.
The first contention on appeal is that the trial court erred in directing a verdict in favor of the defendant with regard to the 336 shares of bank stock originally registered in his name. We have recognized that a verdict should not be directed against a plaintiff in a civil case unless he has failed to demonstrate a prima facie right to recover. Blair v. Preece, 177 W.Va. 517, 346 S.E.2d 50 (1986). See Church v. Wesson, 182 W.Va. 37, 385 S.E.2d 393 (1989); Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979); Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957). In determining whether a prima facie case has been shown, it is incumbent on the trial court to weigh the evidence in the plaintiff's favor, as we stated in Syllabus Point 1 of Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978):
"'"Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [163 S.E. ...