Abernathy v. Romaczyk
| Decision Date | 28 November 1960 |
| Docket Number | No. 5141,5141 |
| Citation | 202 Va. 328,117 S.E.2d 88 |
| Parties | E. H. ABERNATHY, T/A, ETC. v. CHARLOTTE L. ROMACZYK. Record |
| Court | Virginia Supreme Court |
W. Worth Martin and Douglas M. Smith (Martin and Smith, on brief), for the plaintiff in error.
Kimber L. White (Fred W. Bateman; Bateman and White, on brief), for the defendant in error.
On November 17, 1959, Charlotte L. Romaczyk instituted an action at law against E. H. Abernathy, trading as Abernathy's Food Company; James Allen; Tucker F. Stepp, and Harry R. Watkins for damages on account of injuries she received while riding as a passenger in a car operated by her husband, Kazmere C. Romaczyk, which had stopped for a red signal light and was struck in the rear by Abernathy's truck driven by his employee, Allen, and also for damages for injuries she suffered resulting from an altercation which followed the accident. Stepp, a friend of Allen, was riding in the truck and he was not an employee of Abernathy. Watkins, an employee of Abernathy, was the driver of another Abernathy truck which was following the truck driven by Allen and which bumped into Allen's truck soon after it had collided with Romaczyk's vehicle causing the truck driven by Allen and the car to move forward a short distance.
Abernathy operated a portable lunch counter business, known as 'Abernathy's Meals on Wheels'. Trucks were equipped to render this service. A driver-salesman operated each truck. Allen and Watkins were employed by Abernathy as driver-salesmen on the two trucks involved in the present case. Customarily they would service the various military installations and industrial plants in the Newport News area during the daytime. Late in the afternoon they would meet at the west gate of Langley Field and transfer all the food and beverages remaining to one of their trucks. Then the loaded truck would service patrons at Langley Field in the afternoon and evening. The trucks were stored over-night at Hertz U-Drive It system in Newport News, and they were there replenished with supplies early each morning.
Late in the afternoon of October 3, 1958, Allen and Watkins met as usual at Langley Field. Before that Allen had picked up his friend, Stepp. Allen and Watkins concluded that they did not have sufficient supplies between them to justify working Langley Field. They decided to go to 'Pops Restaurant' where Allen and Watkins had 'a couple of beers' each. Stepp did not imbibe there for he had been drinking vodka earlier in the day. Allen ascended his truck, accompanied by Stepp, and drove west on Military Highway, which has four lanes, towards Newport News. Watkins followed in his truck some distance behind.
At the intersection of Military Highway and West Queen street in Hampton, Romaczyk, who was also proceeding west on Military Highway, stopped his automobile at approximately 6 p.m. in obedience to a red signal light, and within a few seconds Allen drove his truck into the rear of the Romaczyk vehicle. Romaczyk got out of his car and walked to the rear of it and observed the bumpers of the two vehicles were resting against each other, and that no apparent damage had been done. After asking Allen 'if he couldn't see where he was going' or 'if he didn't see me sitting there', Romaczyk returned to his car. According to Stepp, Romaczyk asked if they couldn't see where in the 'hell' they were going. When Romaczyk was in the process of re-entering his vehicle, Allen and Stepp got out of the truck and approached him. Then an argument ensued as to the cause of the accident. Allen contended Romaczyk cut in front of him, and Romaczyk maintained that he did not. Mrs. Romaczyk defendant her husband's statement, and Stepp called her a liar. Romaczyk resented this remark. At this point either Allen or Stepp pulled him backward from the car, a tussle ensued between the three men without striking any blows, and in a few seconds they separated.
About that time Watkins, who was driving the other Abernathy truck, arrived at the scene. He did not bring his vehicle to a standstill and it rolled into the rear of the truck operated by Allen, pushing it and the Romaczyk car forward a short distance. Romaczyk remonstrated with Watkins for his actions. In the meantime Mrs. Romaczyk, and her brother, James Cantrell, had gotten out of the car. Watkins approached the group and said: 'When you argue with my friends you argue with me' or 'when you fight with my friends you fight with me.' Stepp 'grabbed' Romaczyk and remarked: 'Come on boys, now I have got him.' Suddenly another scuffle started. According to Romaczyk, 'things happened so fast, I can't remember who really hit who.' Mrs. Romaczyk attempted to stop the fight and was injured. She recalled being struck twice by Watkins and that Stepp twisted her arm which was in a sling due to a previous injury. She also stated that Allen participated in the fracas.
The altercation ended without the assistance of outside parties. The participants returned to their respective vehicles and departed. Romaczyk stopped at a filling station and notified police of the incident. Allen and Stepp were apprehended and taken to the police station. The Romaczyks met them there and after some interrogation allen was released. The charges which had been placed against Stepp were withdrawn after he agreed to pay any medical bills. The Romaczyks then drove Stepp back to Newport News in their automobile.
Stepp did not file responsive pleadings to the motion for judgment and he was adjudged in default. Rule 3:19 of the Rules of Court. The court set a time for hearing evidence without a jury to fix the quantum of damages against Stepp, and proceeded, with the jury, to consider the case as to the other defendants.
At the conclusion of plaintiff's evidence, Abernathy moved the court to strike plaintiff's evidence as to him as far as injuries she received from the assault and battery were concerned on the ground that no agency was shown between him and the co-defendants Watkins and Allen with regard to the assault and battery. The court ruled that there was no agency existing between Abernathy and Watkins at the time of the assault and struck plaintiff's evidence as to Abernathy in so far as any actions of Watkins were concerned, but declined to strike with regard to Allen's actions. The court struck the evidence against Watkins for any of plaintiff's injuries with regard to the automobile accident. It also struck the evidence as to Abernathy for any injuries plaintiff might have sustained in the automobile accident through any agency of Watkins.
Two verdicts were returned. In the first verdict plaintiff was awarded $100 damages against Abernathy and Allen for their negligence in connection with the collision. The second verdict awarded plaintiff $3,000 damages against Watkins, Allen and Abernathy for the assault and battery. Judgment was entered on the first verdict on April 10, 1959, and it is not involved here since no appeal was taken from it. On that day the court also rendered judgment in the sum of $540 against Stepp for injuries plaintiff received in the assault, which judgment was not appealed. Defendants' motion to set the second verdict aside was continued for argument.
Later the court put plaintiff on terms either to remit $750 of the verdict or submit to a new trial limited solely to the issue of damages. Plaintiff excepted on the grounds that the verdict was not excessive and defendants excepted on the grounds that $2,250 was excessive. Defendants' motion to set the verdict aside on the grounds it was contrary to the law and the evidence was overruled. Abernathy also moved to set it aside because of misdirection of the jury by the court in granting and refusing certain instructions, as well as because of the court's refusal to strike plaintiff's evidence as to him with regard to the action for damages...
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