Agsten v. Lemma.

• Decision Date: 26 October 1937
• Docket Number: (No. 8586)
• Court: West Virginia Supreme Court
• Parties: H. B. Agsten v. Luigi Lemma et al.

119 W.Va. 330

H. B. Agsten

v.Luigi Lemma et al.

(No. 8586)

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1937.

Decided October 26, 1937.

1. Automobiles

The owner or operator of an automobile who, in person or through his agent, invites another to ride therein, is not liable for the wrongful act of his invitee resulting in injury and damage to a third party, unless such act was the result of conduct on the part of such invitee, of which the owner or his agent had or should have had knowledge, and from which some wrongful act could reasonably be anticipated.

2. Appeal and Error

Where, in a personal injury case, two or more acts of negligence are alleged in the declaration, and a verdict is returned against three defendants on evidence from which it clearly appears that the verdict against one thereof could only have been returned by finding that one of the acts of negligence alleged, and with which said defendant was connected, caused the injury, it will be presumed that the verdict was based on that act.

Kenna, President, absent.

Error to Circuit Court, Kanawha County.

Action at law by H. B. Agsten against Luigi Lemma and others, wherein some defendants had a directed verdict. From a judgment on a verdict against defendants Luigi Lemma, Cecil Lemma, and Curtis Brewer, defendants Luigi Lemma and Cecil Lemma bring writ of error.

Reversed; verdict set aside; new trial awarded.

Ben Moore, Kay, Casto & Amos and Stanley Dadisman, for plaintiff in error.

Steptoe & Johnson, Stanley C. Morris, W. E. Miller and W. F. Wunschel, for defendants in error.

Fox, Judge:

In an action at law, in the Court of Common Pleas of Kanawha County, the plaintiff recovered a judgment against Luigi Lemma, Cecil Lemma and Curtis Brewer, which upon writ of error to the Circuit Court of said county was affirmed. To this action of the Circuit Court, Luigi Lemma and Cecil Lemma prosecute this writ of error.

The plaintiff instituted his action against Luigi Lemma, Cecil Lemma, Curtis Brewer, William (Billy) Wentz, Tom Waldorf, Aubrey Dean and Nitro Ice Company, a corporation. At the conclusion of the testimony separate motions were made by the defendants for a directed verdict in their favor. This motion was sustained as to William (Billy) Wentz, Aubrey Dean, Tom Waldorf and Nitro Ice Company, and was overruled as to the other defendants. The case therefore went to the jury against Luigi Lemma, Cecil Lemma and Curtis Brewer.

The action grew out of damages sustained by the plaintiff when a brick, thrown or otherwise propelled from a truck operated by Cecil Lemma, the son of Luigi Lemma, struck and passed through the windshield of the automobile operated by the plaintiff, striking him in the face, and causing him to lose control of his car; the result being that his car was damaged and severe injuries were sustained by him in his person. The truck and automobile involved were being operated, at the time of the accident, on a public highway in said county.

The facts, as developed by the evidence are: Luigi Lemma borrowed from the Nitro Ice Company a one and one-half ton Ford truck for the purpose of transporting cement slabs and broken bricks from Nitro to his farm a few miles from that point. He employed two colored boys, George Waddy and Lewis Waddy, to operate the truck. Some time during the day of the accident, without the knowledge of Luigi Lemma, his son, Cecil Lemma, aged about eighteen years, associated himself with the enterprise. In the afternoon, on the third trip to the farm, Cecil Lemma was driving the truck, and the two colored boys were sitting with him in the cab seat in the front part of the truck. On their way, at a point near a field across Armour Creek, they fell in with Curtis Brewer, Billy Wentz, Aubrey Dean and Tom Waldorf, school mates of Cecil Lemma, who were invited by Lemma to accompany him on his trip to the farm. These boys placed themselves on the body of the truck to the rear of the cab. The truck had been stopped at this point to enable Lemma to straighten up some cement slabs which were becoming displaced, and there is evidence that at this time one or more bricks were thrown by one or more of the invitees from the truck into a pond created by high water. Shortly after this, when the truck was climbing a hill, running in low gear and at a slow speed, Cecil Lemma stepped on the running board of the truck and looked back and saw, or could have seen, the rear portion of the truck and the four boys. After the truck reached the top of the hill and started down the other side, and when near the place of the accident, two of the boys on the rear of the truck kicked or threw a brick from the truck onto the highway. Tom Waldorf says he kicked one brick onto the road, and that the boys watched it until it stopped rolling; that Curtis Brewer then said "I can do that, too", and threw a brick. Brewer admits he threw a brick. Both of these acts occurred closely together and near the 40th street intersection with the Tyler Mountain road. Cecil Lemma and the two colored boys in the cab all say they knew nothing of these bricks being kicked or thrown from the truck, and after the brick struck the plaintiff's car, ran the truck some three or four hundred yards before the boys in the rear of the truck could communicate to them that an accident had occurred. Upon hearing of the accident, Lemma turned the truck and returned to the scene.

At the time the brick was thrown from the truck the plaintiff was driving his automobile in the opposite direction from that of the truck. His car was passing the truck at that particular time. The brick which Brewer threw did not strike the road, but apparently did strike the windshield of plaintiff's car and passed through the same, striking him. A brick was found in the car after the accident. The evidence and the circumstances force the conclusion that the brick which caused the accident to the plaintiff was thrown by Curtis Brewer, and we interpret the jury's finding as establishing that fact.

Other circumstances not directly connected with the accident, but following shortly thereafter, should be noted. When Cecil Lemma and Curtis Brewer found the brick in plaintiff's car they removed the same and Lemma stamped it in the mud at the side of the road. Afterwards, the brick was found and identified, and when asked to explain his apparent effort to conceal it, Lemma said he was "Just nervous and scared. It was the first thing that popped into my mind", and, referring to the same brick, "Well, when I saw it I had a good idea where it came from". It appears, however, that when Lemma and Brewer were asked about this brick they freely disclosed what had been done and returnee, to the scene of the accident with a member of the State Police, and located and identified the brick. It appears, also, that when the four boys who were on the rear of the truck were questioned by the State Police the night of the accident they were evasive and non-committal, particularly Brewer. His explanation of his conduct was "Well, I was afraid of what they would do to me for throwing the brick."

The declaration charges that the truck was improperly loaded. There is some conflict as to the manner of loading and as to whether or not there were side boards. Taking the evidence as a whole, it fails to establish that the manner in which the truck was loaded contributed in any way to the accident; it likewise fails to establish that the brick which struck plaintiff's car was propelled in any manner other than that used by Curtis Brewer.

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