Alvey v. Butchkavitz

• Decision Date: 22 November 1954
• Docket Number: No. 4269,4269
• Citation: 196 Va. 447,84 S.E.2d 535
• Court: Virginia Supreme Court
• Parties: JOHN E. ALVEY, TRADING AS J AND J GARAGE v. STEVE BUTCHKAVITZ. Record

Page 535

84 S.E.2d 535

196 Va. 447

JOHN E. ALVEY, TRADING AS J AND J GARAGE v. STEVE BUTCHKAVITZ.

Record No. 4269.

Supreme Court of Appeals of Virginia

November 22, 1954.

Frank P. Moncure, Thomas M. Moncure and T. Brooke Howard, for the plaintiff in error.

Bedford B. Uhler, Jr. and W. Hill Brown, Jr., for the defendant in error.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Steve Butchkavitz obtained a verdict in the sum of $6,500 against Gene Florence and John E. Alvey, the latter trading as J and J Garage. The motion of the defendants to set aside the verdict was overruled and judgment was entered thereon. Florence elected to abide by the judgment, and upon Alvey's petition we granted him a writ of error.

We are met at the threshold of the proceeding with the renewal of a prior motion to dismiss the writ of error as having been improvidently awarded on the ground previously asserted, that appellant failed to designate the parts of the record to be printed in compliance with Rule 5:1, § 6. In ruling on that motion we held that the rule had been complied with as parts of the record had been designated for printing within the time prescribed. We adhere to that ruling.

The motion for judgment alleged that the plaintiff suffered the injuries complained of as the result of being negligently shot by defendant Florence who at the time was acting as the agent and servant of the defendant Alvey, within the scope of his employment.

The answer denied that Florence shot the plaintiff, and also denied that he was the agent, servant or employee of Alvey at the time of the shooting. The answer affirmatively alleged that the plaintiff shot himself and that his injuries, if any, were caused by his own negligence. These are the issues on which the case was tried in the lower court.

The evidence was not transcribed but is before us in an agreed stipulation. The testimony of the plaintiff Butchkavitz was to the effect that he and a companion were returning from Florida with a truckload of produce, bound for Scranton, Pennsylvania; that when they approached Woodbridge, Virginia, the truck encountered mechanical difficulty; that a wrecker belonging to Alvey was summoned and the truck hauled to Alvey's place of business; that Alvey did not have the parts necessary to repair the truck and he and plaintiff's companion drove to Washington to obtain them; that plaintiff remained at the garage which was in charge of defendant Florence. Plaintiff further testified that at approximately 9 a.m., while he was waiting the return of Alvey and his companion 'Florence walked behind the counter in the vicinity of the cash register which was on the counter, emerged with a pistol in hand, walked to the rear of the room, still carrying the pistol in hand, and obtained a wire and a rag for the apparent purpose of cleaning the pistol. ' He further stated that Florence offered to sell him the weapon but that he refused the offer and gave as his reason that he was afraid of pistols and requested Florence to put the pistol away. Plaintiff testified that Florence then entered the doorway of an adjoining room, that while he was sitting in a chair near the front door, he 'immediately heard a report, felt a pain in his leg, and discovered that he had been shot'.

Butchkavitz further testified that when Florence discovered 'that he had shot the plaintiff', he drove him to the home of a physician where he was treated and given prescriptions for drugs; that Florence obtained the drugs for him at a drugstore, and after they returned to the garage Florence took $10 from the cash register and gave it to him 'to help him defray his medical expenses.'

Butchkavitz further stated that when Alvey and his companion returned Alvey remarked, 'I don't know what he was doing with it (the pistol) in the place. If anyone wants to steal anything they can have it. ' Butchkavitz said that he and Florence were alone when the shot was fired and that no one else was in the garage while Alvey and his companion were away except for a brief period when the deliveryman brought the morning newspapers which Florence paid for with money from the cash register.

Gene Florence testified that he was employed by Alvey to keep the filling station, which operated on a 24-hour basis; that the time of his employment was from midnight to 8 a.m.; that his duties were servicing the automobile trade, selling tobacco, candies, papers, etc. He stated that he was relieved of duty by George Humphries at 8 a.m. on the morning in question; that he remained at the station reading the morning paper and was awaiting a ride to his home when the shot was fired; that Humphries did not come into the room where he and the plaintiff were but remained in the garage portion of the building. He stated that plaintiff had brought with him to the garage a small overnight bag, and that about 8:30 a.m. plaintiff produced a pistol from the bag and offered to sell it to him; that plaintiff was sitting with his legs crossed and was twirling the pistol on the finger of his right hand 'like the cowboys do' when it discharged and inflicted the injuries complained of to his right knee; that after the shooting the plaintiff placed the pistol back in the overnight bag; that he took the plaintiff to the doctor and that plaintiff told the doctor that he had shot himself.

Florence denied that he gave plaintiff $10 and he also denied that he was in the employ of Alvey when the shooting occurred. He stated that no one was in the service station at the time of the shooting but that he heard Humphries 'or someone else' in the garage portion of the building. On cross examination Florence admitted that he paid for the papers out of the cash register.

Dr. Phillips, the physician who treated Butchkavitz, was not called as a witness.

Alvey testified that he owned and operated the garage and kept it open on a 24-hour basis; that he employed Florence as his 'night man' to keep the station open during the hours from midnight to 8 a.m.; that George Humphries was scheduled to relieve Florence at that time; that when he returned to the garage from Washington at 10 a.m. the plaintiff told him he had shot himself and made no claim that Florence had shot him; that he kept no pistol in the garage but admitted that he kept a shotgun there. He also stated that he later received a bill from the plaintiff representing medical and hospital expenses which he ignored. Alvey testified on cross examination that if Humphries was not there to relieve Florence at 8 a.m., Florence would be expected to continue on duty.

Humphries testified that he was employed by Alvey at the time of the shooting and that he had actually reported for duty at 8 a.m. and was in the garage room servicing a car when the pistol shot was heard; that Florence said that the plaintiff had shot himself, and that plaintiff was holding the pistol.

Richard Duval, another witness, testified that he talked to the plaintiff and that plaintiff told him he shot himself. Duval admitted on cross examination that he was an uncle of Florence's.

It will be noted that as between the plaintiff and Florence there was only one issue for decision, i.e., whether the plaintiff's wound was self-inflicted or caused by the actionable negligence of Florence. The weight and sufficiency of the evidence in this regard was a jury question, and under proper instructions the jury resolved the issue in favor of the plaintiff. The jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Carpenter v. Commonwealth, 193 Va. 851, 858, 71 S.E. (2d) 377. Alvey does not now question the finding of the jury on this point.

Alvey insists, first, that the evidence was not sufficient for the jury to conclude that Florence was his agent at the time the shooting occurred; and second, that in any event there was not sufficient evidence to show that Florence was acting within the scope of his employment at the time the injury was inflicted.

As to Alvey's first contention, the evidence concerning the fact of agency was in conflict and a jury question was clearly presented. Alvey relied strongly upon the testimony of his employee, Humphries, who testified that he relieved Florence at 8 a.m. In his attempt to show this Humphries testified that he was in the garage portion of the establishment when he heard the shot and then went to the room in which Butchkavitz and Florence were stationed. According to his own admission, he had not seen Florence before this time. Florence testified that he had not seen Humphries before the shooting but that he had heard Humphries 'or someone else' in the garage prior to that time. Butchkavitz testified that he and Florence were the only persons on the premises at the time of the shooting and that no one else had been there except the man who delivered the morning papers. He further testified that he had never seen Humphries until the day the case was tried. Alvey admitted that he left Florence in full charge when he and Butchkavitz's companion left for Washington, and that it was Florence's duty to remain in charge of the business until he was duly relieved by Humphries.

The court carefully...