Buffa v. Baumgartner

Decision Date07 March 1950
Docket NumberNo. 10202,10202
Citation58 S.E.2d 270,133 W.Va. 758
PartiesBUFFA, v. BAUMGARTNER et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. Code, 56-4-24, vests in a trial court of this State the power and discretion to permit amendments to pleadings in both law and equity, at any time before final judgment or decree, if in its opinion substantial justice will be promoted thereby, and the proposed amendment does not change the cause of action alleged in the bill or declaration intended to be amended.

2. The discretion vested in trial courts to permit amendments to pleadings, under Code, 56-4-24, is not absolute, should be construed as a judicial discretion, and is subject to appellate review.

3. A father is the owner of an automobile which he permits his son, a member of his family, to operate on the public highways. A guest passenger of the son is killed in an accident, the alleged result of negligence on the part of the son in operating said automobile, and her personal representative sues both father and sone to recover damages for such death. In the declaration filed in the action, the son is alleged to have operated the automobile. In the trial of the case, it develops from evidence introduced by defendants that another guest passenger in the automobile at the time of said accident may have been the operator of the automobile involved in the death of the plaintiff's decedent; and plaintiff, after all the evidence in the case had been introduced, asked leave, in substance, to amend her declaration to charge that such other guest passenger was the driver of the said automobile, under the direction and supervision of the son of the owner thereof, which request the trial court denied, and gave the jury instructions that plaintiff could not recover in the action, if the jury believed from the evidence that a guest passenger, and not the son, was the operator of the automobile at the time of the death of plaintiff's decedent; and on the evidence and instructions in the case, the jury returned a verdict for the defendants, and judgment was entered thereon. Held: Motion so made by plaintiff for leave to amend her declaration, in the particulars stated above, should have been sustained.

Mahan, White & Higgins, Fayetteville, Joseph Luchini, Beckley, for plaintiff in error.

Fletcher W. Mann, Beckley, H. E. Dillon, Jr. Fayetteville, for defendants in error.

FOX, Judge.

This is an action for wrongful death, tried before a jury in the Circuit Court of Fayette County, in which a verdict in favor of the defendants was returned and judgment entered thereon, after a motion to set aside said verdict had been overruled by the trial court. On September 6, 1949, we granted this writ of error to the judgment aforesaid.

The defendant, G. A. Baumgartner, was the owner of an automobile, the use of which he permitted members of his family, including his son, Allen Baumgartner. The cause of action as against G. A. Baumgartner was based on the theory of the family purpose doctrine, recognized in this jurisdiction, and established by the cases of Jones v. Cook, 90 W.Va. 710, 111 S.E. 828; Aggleson v. Kendall, 92 W.Va. 138, 114 S.E. 454; Ambrose v. Young, 100 W.Va. 452, 130 S.E. 810; Watson v. Burley, 105 W.Va. 416, 143 S.E. 95, 64 A.L.R. 839; Thalman v. Schultze, 111 W.Va. 64, 160 S.E. 303; Wyant v. Phillips, 116 W.Va. 207, 179 S.E. 303; and Eagon v. Woolard, 122 W.Va. 565, 11 S.E.2d 257, 134 A.L.R. 970.

The declaration on which the action was tried, being an amended declaration, alleges the ownership of the automobile involved in the accident, in which plaintiff's decedent lost her life, to be in G. A. Baumgartner; that he authorized Allen Baumgartner to use said automobile for any purpose he desired, and especially for business and pleasure, and had authorized said Allen Baumgartner to use said automobile at the date of the injury and death involved. The declaration then alleges that said automobile was, at the time of the accident involved herein, operated by Allen Baumgartner on a public highway, and that plaintiff's decedent was a guest passenger, and lost her life by reason of the negligent operation of said automobile. It seems unnecessary to go into detail as to the several allegations of the declaration. It is sufficient to say that it alleges a good cause of action against both of the defendants, and was not attacked by demurrer or otherwise. The action was tried upon a plea of not guilty, resulting in the verdict and judgment aforesaid.

The facts in the case are that on the evening of August 5, 1948, Allen Baumgartner, accompanied by his friend John White, Jr., visited a road house on U. S. Route No. 19, between Fayetteville and Oak Hill, in Fayette County. While there they met three young women, one a married lady, another by the name of Helen Lacek, and plaintiff's decedent, Helen Margaret Buffa. This meeting was had around ten o'clock at night, and they remained at that place for something less than an hour, and while there three of them consumed one bottle of beer, and John White, Jr. may have consumed two bottles. They then left said road house in the direction of a place called The Dugout, located on Route No. 19 near Beckley. Helen Margaret Buffa travelled in the car of the married lady to a point known as Cranberry, and White and Helen Lacek rode with Allen Baumgartner in his father's automobile. At Cranberry, Helen Margaret Buffa left the car of the married lady, who returned to her home, and then travelled in the Baumgartner automobile to The Dugout. They remained at The Dugout for some time, and while there they obtained and consumed the greater part of one pint of whiskey. The testimony is that three of them each took one drink, and there is some evidence that John White, Jr. may have taken two drinks. The remainder of the whiskey was disposed of without drinking. This drinking of beer and whiskey is admitted by all of the witnesses who testified in the case with respect thereto, except that there is some conflict as to the amount of each consumed by White; but all of them testify that none of the parties who consumed said beer and whiskey were intoxicated. Upon leaving The Dugout, they went in to Beckley, and visited one or more road houses in an effort to obtain food, but were unsuccessful. They then went to the residence of Helen Lacek, and White escorted her to the door of her home, and then returned to the automobile in which they had been riding. Meanwhile, Helen Margaret Buffa was taken to her home, and givena n opportunity to enter the same, but she declined to do so and remained with Baumgartner and White.

Up to this point there is no substantial dispute as to what occurred during the evening, but a dispute arises in the testimony as to who drove the automobile from the Lacek home to the point of the accident and death of Helen Margaret Buffa. White testifies that when he returned to the automobile after escorting Helen Lacek to her home, he inquired of Allen Baumgartner if he wished him to drive the automobile, and that Baumgartner replied, in effect, that he could do so if he wanted to. He then says that he got under the wheel of the automobile, but being unacquainted with the same, he could not get its engine started, whereupon he left the front seat of the car, and that Allen Baumgartner then took charge of the same and drove it from that point on to the place of the accident. He also says that he, White, got into the rear seat of the automobile, leaving Allen Baumgartner and Helen Margaret Buffa in the front seat. He then says that he soon fell into a deep sleep and was unconscious of what happened until he found himself lying in the road at the point of the accident.

The testimony of Allen Baumgartner is that when White returned to the automobile after escorting the Lacek girl to her home, he inquired if he, Baumgartner, wanted him to drive the automobile, and that he hold him he could do so if he wanted to, or words to that effect; that White then got into the front seat of the automobile and that he, Baumgartner, and Helen Margaret Buffa seated themselves in the rear seat; that the automobile had been allowed to idle and its engine running at the time White took his seat under the wheel; that they then started in the direction of another road house south of Beckley with the idea of finding food. Being seated in the rear seat with the Buffa girl, he attempted, as he terms it, to 'make love', but met with no response, presumably no favorable response. After the automobile was in motion on the highway, he was thrown to the side of the automobile seat in passing around a curve, and immediately fell into a deep sleep, and knew nothing of what happened until he found himself over the bank of the right hand side of the road in the direction they were travelling, at the point where the accident here involved occurred. This is all of the testimony of the parties who were present at the time of the accident, and who could testify. Helen Margaret Buffa was killed leaving only Allen Baumgartner and John White, Jr. to testify as to what actually occurred, and, unfortunately, if we believe both stories, which seems impossible, each of them was in the rear of the automobile at the time of the accident, and both were wholly unconscious of what was happening.

There are, however, certain circumstances, and what may be termed physical facts, which throw some light as to how the accident really occurred. A member of the State Police examined the scene of the accident a short time after it happened. He testifies that there was a sharp curve at the point of the accident. He located skid marks on the surface portion of the highway for eighty-one feet back of where marks indicated that the automobile had struck the steel guard rails on the right hand side of the road. The automobile grazed the guard rails for a distance of ninety feet,...

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3 cases
  • Payne v. Kinder
    • United States
    • Supreme Court of West Virginia
    • October 23, 1962
    ...amendment does not change the cause of action alleged in the bill or declaration intended to be amended.' Point 1, syllabus, Buffa v. Baumgartner, 133 W.Va. 758 4. Under a well settled rule of practice, courts of law and equity exercise great liberality in permitting amendments to pleadings......
  • Freeland v. Freeland
    • United States
    • Supreme Court of West Virginia
    • September 10, 1968
    ...452, 130 S.E. 810; Aggleson v. Kendall, 92 W.Va. 138, 114 S.E. 454; Jones v. Cook, 90 W.Va. 710, 111 S.E. 828. See also Buffa v. Baumgartner, 133 W.Va. 758, 58 S.E.2d 270. See 2 M.J. Automobiles, Section 53 and 60 C.J.S. Motor Vehicles § Liability, under this doctrine, is not based on the e......
  • State ex rel. Green v. Board of Ed. of Braxton County
    • United States
    • Supreme Court of West Virginia
    • March 7, 1950

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