Barnes v. Hampton

• Decision Date: 01 March 1928
• Citation: 141 S.E. 836
• Court: Virginia Supreme Court
• Parties: BARNES . v. HAMPTON.

141 S.E. 836

BARNES .

v.HAMPTON.

Special Court of Appeals of Virginia.

March 1, 1928.

Error to Law and Chancery Court of City of Norfolk.

Action by Forrest Gilbert Hampton, suing by his father and next friend, A. M. Hampton, against Stella Barnes. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

Page, Page & Page, of Norfolk, for plaintiff in error.

C. M. Sawyer, and Merrill & Machen, all of Norfolk, for defendant in error.

McLEMORE, J. Writ of error to a judgment of the court of law and chancery of the city of Norfolk.

The parties will be referred to as they appeared in the trial court wherein plaintiff by his next friend obtained a judgment, upon a motion, against defendant and W. S. Marts for the sum of $2,500 for injuries sustained when struck by an automobile being operated by W. S. Marts.

Defendant Stella Barnes resided at 62 Church street, Norfolk, and was the owner of a Buick automobile which she sometimes drove herself, but which was usually driven by Marts when she was riding therein. He also resided at No. 62 Church street and on several occasions had driven this car for his own pleasure, or convenience, as well as when on missions for its owner. He was not employed by defendant.

On Sunday afternoon October 17, 1926, Marts took the car to Ocean View, where defendant was spending the day and night, using the same at her request to bring to the View for a social call some friend of defendant. She also requested him to take the friend back to Norfolk, about eight miles, and to bring certain articles from the city residence to the View, and to be back by 6 p. m.

Under these instructions he took the friend back to Norfolk in the afternoon, but did not bring back to Ocean View the articles she had requested him to get, nor did he go back to the View at all. Between 9 and 10 o'clock at night Marts, while driving this car on Park avenue in the direction of Virginia Beach, and in a different section of the city, struck and injured the plaintiff, an infant of about 12 years, as a result of which a joint judgment was obtained against him and the plaintiff in error for $2,500.

The error assigned in the petition is in the following words:

"The court erred in having overruled the defendant's motion to set aside the verdict as contrary to the law and evidence and grant a new trial, and for having refused to set aside the verdict and enter up judgment for the defendant because the verdict against your petitioner was plainly wrong and without evidence to support it.

"Your petitioner says that the court erred in not sustaining its motion for the following reasons:

"(1) That there was no relationship of master and servant between the defendant Marts, the operator of the ear, and your petitioner.

"(2) That the defendant Marts was operating her car without her direction, knowledge, or consent.

"(3) That if Marts had been operating with her permission she is not liable."

The notice of motion alleges that when plaintiff was injured on Park avenue the automobile was "being operated at the time by William S. Marts, who at that time was operating said automobile as the servant and agent of Stella Barnes." This allegation was denied by affidavit of defendant filed in accordance with section 6126, Code of Virginia. This placed upon the plaintiff the burden of proving the essential allegation charged, namely, that Marts was the servant or agent of defendant at the time of the injury to the child on Park avenue in that subdivision of Norfolk known as Brambleton.

This case is before us as upon a demurrer to the evidence, and can only be set aside when there is no sufficient evidence to support the verdict of the jury.

The evidence relied upon to establish the relation of master and servant, indeed, the only evidence on the subject, is that of the defendant and Marts, and from their statements it seems clear that Marts, in his trip to Ocean View in the car and his return with defendant's friend, was acting for and under the direction of...