Alloy v. Hennis Freight Lines, Inc., 10566

Decision Date21 May 1954
Docket NumberNo. 10566,10566
Citation139 W.Va. 480,80 S.E.2d 514
CourtWest Virginia Supreme Court
PartiesALLOY, v. HENNIS FREIGHT LINES, Inc.

Syllabus by the Court.

1. Under Chapter 55, Article 7 of the Code, as amended by Chapter 2, Acts of the Legislature, Regular Session, 1945, and Chapter 4, Acts of the Legislature, Regular Session, 1949, if a person dies of injuries, occasioned by the wrongful act of another, pending trial of an action to recover for such injuries, such action may be revived in the name of his personal representative, but such further proceedings shall conform to an action for wrongful death in which recovery is limited to the amount of $10,000.

2. 'Alleged errors in the admission or the rejection of evidence, to which objection has been made in a trial court, are waived unless such evidence is specifically set forth as a ground of a motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions which shows the evidence and the ruling of the court in admitting or rejecting it.' Syl. Pt. 3, Ritz v. Kingdon, W.Va. .

3. The presumption of agency arising from a showing that the driver of a tractor was employed by defendant for that purpose and that the tractor was used in defendant's business is rebutted by evidence establishing that driver had, for approximately five hours previous to the accident, been going from place to place looking for a person and drinking beer, during part of which time he had provided his own means of transportation, and that, at the time of the accident, the driver was proceeding to another tavern in a direction other than that in which the furtherance of defendant's business would normally take him, and, in the absence of any further evidence in behalf of the plaintiff tending to establish agency, a verdict should have been directed in favor of the defendant.

Scherer, Bowers & File, L. L. Scherer, Douglas Bowers, Beckley, for plaintiff in error.

Sayre, Lynch & Henderson, Ashworth & Ashworth, Robert J. Ashworth, G. Berk Lynch, Beckley, for defendant in error.

BROWNING, Judge.

This action of trespass on the case was originally instituted by Tony Alloy to recover for personal injuries and property damage sustained in a collision between the automobile driven by Alloy and a tractor, owned by defendant B. W. Stuttes, and leased to and operated by defendant Hennis Freight Lines, Inc., hereinafter referred to as Hennis. Tony Alloy died pending trial from these injuries, and, upon motion of Myrtle Alloy, administratrix of the estate of Tony Alloy, the action was revived in her name as such administratrix, and an amended declaration was permitted to be filed. A trial by jury resulted in a verdict against the defendants Stuttes and Hennis in the amount of $11,062.63. It is stipulated by counsel that the verdict allotted $10,000 for the wrongful death of Tony Alloy, and $1,062.63 for damage to the automobile. A motion to set aside the verdict was made in behalf of each defendant, and after consideration, the court sustained the motion as to Stuttes, but overruled the motion in behalf of Hennis, and entered judgment on the verdict.

Hennis, upon this writ of error assigns as error the refusal of the court to permit the introduction of proper evidence in its behalf the giving and refusal of certain instructions, and the refusal of the court to direct a verdict in favor of the defendant.

Although the point is not discussed in briefs of counsel, the defendant objected to the action of the court in reviving the law action of Tony Alloy in the name of the plaintiff as administratrix of the estate of the deceased Tony Alloy, and likewise objected and excepted to the filing of the amended declaration. The designation of the items of the record to be printed does not include either the original or the amended declaration. The declaration should have been amended so as to conform to an action for wrongful death. The record shows only that defendant objected and excepted to the filing of the amended declaration, and is silent as to the grounds assigned therefor.

Chapter 55, Article 7 of the Code, as amended by Chapter 2, Acts of the Legislature, Regular Session, 1945, and Chapter 4, Acts of the Legislature, Regular Session, 1949, provides that an action may be revived in the name of the injured party against the personal representative of the wrongdoer, and likewise revived in the name of the personal representative of the injured party against the wrongdoer or his personal representative. The section states: 'Where an action is brought by a person injured for damage caused by the wrongful act, neglect or default of any person or corporation, and the person injured dies pending the action, the action shall not abate by reason of his death but, his death being suggested, it may be revived in the name of his personal representative, and the declaration and other pleadings shall be amended so as to conform to an action under sections five and six of this article, and the case proceeded with as if the action had been brought under said sections. * * *' Sections 5 and 6, to which reference is made, are concerned exclusively with actions for wrongful death by the personal representative of a deceased person, and Section 6 reads in part as follows: '* * * In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars, * * *.'

In City of Wheeling ex rel. Carter v. American Casualty Co., 131 W.Va. 584, 48 S.E.2d 404, this Court held that under the provisions of Code, 55-7-8, an action for damages for personal injuries instituted by the injured person, who, while the action is pending, dies from a cause or causes other than the injury, may be revived after his death by his personal representative, and prosecuted to final judgment against the wrongdoer. The injured person in this case, Tony Alloy, who initially instituted an action for damages, died while that case was pending from injuries received from the alleged wrongful act of the defendant. Upon those facts, his personal representative was empowered under the provisions of the statute to revive the action, but under the section heretofore quoted was required to proceed as if the action had been brought under Sections 5 and 6 of Article 7. Under those sections, the maximum sum that could be recovered for the wrongful death of the deceased was $10,000, and it was error for the court to...

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6 cases
  • Laslo v. Griffith
    • United States
    • West Virginia Supreme Court
    • April 8, 1958
    ...2 S.E.2d 898. The defendant cites and relies upon several decisions of this Court, particularly the cases of Alloy v. Hennis Freight Lines, Inc., 139 W.Va. 480, 80 S.E.2d 514; Lacewell v. Lampkin, 123 W.Va. 138, 13 S.E.2d 583; and Jenkins v. Spitler, 120 W.Va. 514, 199 S.E. 368, in support ......
  • State v. Bragg, 10701
    • United States
    • West Virginia Supreme Court
    • June 7, 1955
    ...138 W.Va. 332 ; Isabella v. West Virginia Transportation Co., 132 W.Va. 85 ; Crookshank v. Hall, 139 W.Va. ---- ; Alloy v. Hennis Freight Lines, Inc., 139 W.Va. ---- ; and State v. Davis, 139 W.Va. ---- ; Haldren v. Berryman, 109 W.Va. 403 ; Graner v. Boring, 105 W.Va. 505 ; Stewart v. Poll......
  • Mills v. De Wees, 10769
    • United States
    • West Virginia Supreme Court
    • June 12, 1956
    ...proof. Likewise the foregoing cases, as well as the instant case, may be distinguished from the recent case of Alloy v. Hennis Freight Lines, 139 W.Va. 480, 80 S.E.2d 514, 515, which simply held that under Chapter 55, Article 7 of the Code, as amended by Chapter 2, Acts of the Legislature, ......
  • Union Carbide Corporation v. Goett
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 27, 1958
    ...to an action for wrongful death. W.Va.Code, 1955, § 5477. 8; Railing v. Case, D.C.N.D. W.Va., 131 F.Supp. 754; Alloy v. Hennis Freight Lines, 139 W.Va. 480, 80 S.E. 2d 514. Of course, no such action was filed by Goett. In the instant case liability for Goett's death is claimed on the basis ......
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