Clements v. Stephens

• Decision Date: 14 January 1975
• Docket Number: No. 13234,13234
• Citation: 158 W.Va. 329,211 S.E.2d 110
• Court: West Virginia Supreme Court
• Parties: Aida CLEMENTS, Administratrix, etc. v. Michael Noyce STEPHENS et al.

Page 110

211 S.E.2d 110

158 W.Va. 329

Aida CLEMENTS, Administratrix, etc. v. Michael Noyce STEPHENS et al.

No. 13234.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1975.

Syllabus by the Court

1. 'A motion to amend a plead ing is addressed to the sound discretion of the trial court and such discretion will not be disturbed on appeal unless there is a showing of abuse of discretion.' Syllabus point 1., Nellas v. Loucas, W.Va., 191 S.E.2d 160 (1972).

2. The giving or refusal of instructions is not controlled merely by issues developed in pleading, but also depends upon the quantum of evidence introduced at trial supporting those issues.

3. As the defense of assumption of risk entails a voluntary exposure to a known and appreciated hazard, where an automobile operator is driving while deprived of his customary sleep, and such fact is known or in the exercise of reasonable care should have been known to a guest passenger who nevertheless chooses to become or continue as a passenger, the guest may be found to have assumed the risk of danger occurring when a driver of a moving vehicle falls asleep; conversely, where a guest passenger is unaware of the sleepless condition of the driver, or of circumstances which could have alerted him to the potential danger of this hazard, he is not chargeable with assumption of risk.

4. 'The giving of an instruction, having no basis or foundation in the case in which it is given, if prejudicial, will constitute reversible error.' Syllabus point 3., Herold v. Clendennen, 111 W.Va. 121, 161 S.E. 21 (1931).

5. Proof that an automobile driver fell asleep while the vehicle was moving may be Prima facie evidence of actionable negligence if it was the proximate cause of the injuries for which plaintiff complains.

Preiser & Wilson, W. Dale Greene, Charleston, for appellant.

Savage, MacCorkle & Rippetoe, D. J. Savage, Charleston, for appellees.

HADEN, Chief Justice:

This is an appeal from the final order of the Circuit Court of Kanawha County affirming, as 'plainly right', the judgment of the Common Pleas Court of that county which had previously overruled plaintiff's motion for a new trial and confirmed a judgment entered upon a jury verdict exonerating the defendant automobile operator from liability in this civil action for wrongful death.

The cause of action arose from a single car accident occurrence on the West Virginia Turnpike of May 25, 1963. At the time and place of the accident, John Dillon Frudd, the plaintiff's decedent, was a guest passenger in an automobile owned by Stephen Stewart and operated by Michael Noyce Stephens, the appellee.

Plaintiff instituted this litigation in 1965. The action has been thus far tried three times. The first trial resulted in a verdict for the plaintiff in the amount of $1,000.00, but was set aside on motion of the plaintiff. The second trial ended with a 'hung' jury. The third trial concluded in a verdict and judgment for the defendant Stephens; it is the predicate of this appeal.

According to the evidence, the ill-facted automobile journey originated at a military base in Charleston, South Carolina, at approximately 5:00 o'clock p.m. on May 24, 1963. The original occupants of the car were Stewart, Stephens and another serviceman, Bruce Taylor, all of whom were beginning weekend passes. Stewart's destination was his home in Ohio; Stephens' destination was Belle, West Virginia; and Taylor was traveling to his home in Institute, West virginia. The three had agreed to share the travel expenses. Stephens also agreed to share the chore of driving with Stewart.

Frudd, an Army serviceman stationed at Ft. Bragg, North Carolina, had been granted military leave and was hitchhiking from Ft. Bragg to his home in Michigan. His travels en route brought him to Fancy Gap, a small town in southwestern Virginia, near the North Carolina border. There he solicited a ride in the Stewart automobile and joined its three occupants. The time of this occurrence was not established by the evidence.

At the southern terminus of the West Virginia Turnpike, at Princeton, West Virginia, the Stewart automobile stopped again to pick up two more servicemen hitchhiking home on leave--one Davis and John McCallister, residents of Eccles and Huntington, West Virginia, respectively. This stop occurred at approximately 1:30 o'clock a.m. on May 25 while Stewart was driving. Davis and McCallister each contributed one dollar ($1.00) toward defraying the expenses of the turnpike toll and gasoline.

After traveling approximately thirty miles north on the turnpike, Davis exited the automobile at the Eccles bridge where it over-crossed the West Virginia Turnpike. Shortly thereafter, the remaining occupants stopped just north of the Beckley interchange at the 'Glass House' for coffee and soft drinks. After an interval of about twenty minutes, they resumed their journey northward on the turnpike with Stephens driving, Stewart resting or sleeping in the adjoining front seat area, and the remaining three passengers sleeping in the rear seat of the car. According to the testimony of John McCallister, Frudd fell asleep almost immediately after the automobile departed the restaurant and he, McCallister, remained awake for about fifteen to twenty minutes to observe the demeanor of the driver. Observing nothing of concern in Stephens' manner of driving, he, too, soon fell asleep.

Just south of the Marmet area of the turnpike at approximately 3:00 o'clock or 3:15 o'clock a.m., the automobile left the northbound lane of the highway, crossed the southbound lane, and struck the hillside adjacent to the southbound lane. Frudd and McCallister were thrown from the vehicle. Frudd suffered serious injuries culminating in his death approximately one week later.

When the accident occurred the weather was relatively clear, although McCallister noted the conditions at the scene as 'misting' or possibly foggy. Speed was not a factor in the accident. No proof was offered that Stephens or Stewart had fallen asleep or had become drowsy while driving, prior to the accident. In fact, defendant Stephens specifically denied falling asleep while driving, although acknowledged he was dazed momentarily immediately prior to the accident. Stephens also testified that he had experienced some difficulty in turning the wheel of the car, implying possible mechanical defect in the car's steering mechanism. But Stephens alone spoke to this point and he conceded that the car, a 1955 Buick, otherwise appeared to be in sound mechanical condition during the time he was in control of the vehicle.

During the latest trial, the principal contentions of the defense were (1) that the driver was not negligent in the operation of the motor vehicle; that, consequently, his actions did not proximately cause the death of plaintiff's decedent; and (2) that plaintiff's decedent either contributed to his own injury or assumed a known risk of danger in accepting a ride and continuing to ride with Stephens and Stewart under the circumstances. At the conclusion of the trial, the court refused to instruct the jury on the theory of contributory negligence, ruling it was not an applicable theory in the case. On the other hand, the court required plaintiff to amend certain proffered instructions to include the theory of assumption of risk. The court also gave certain instructions offered by defendant expressing the defense of assumption of risk.

On this appeal the plaintiff makes three assignments of error. The first is a procedural point. Before the first trial began the trial court, over objection of the plaintiff, permitted the defendant to amend his answer to include the assertion of assumption of risk as an additional affirmative defense. Plaintiff contends that Rule 8(c), W.Va. R.C.P. prohibits the assertion of an affirmative defense after the pleadings are closed, relying upon the case of Adkins v. City of Hinton, 149 W.Va. 613, 142 S.E.2d 889 (1965). There is no merit to this contention. The Adkins case is inapposite because there, the affirmative defense was never pleaded and no showing was made to demonstrate amendment at trial, by express or implied consent. Consequently, this Court quite properly refused to consider the issue of assumption of risk on appeal. See also, Dunning v. Barlow & Wisler, Inc., 148 W.Va. 206, 133 S.E.2d 784 (1963).

Conversely, when a trial court has permitted amendment by a party to assert an affirmative defense, the ground rules on review are quite different. Appropriate to this case we held in Nellas v. Loucas, W.Va. 191 S.E.2d 160 (1972), 'A motion to amend a pleading is addressed to the sound discretion of the trial court and such discretion will not be disturbed on appeal unless there is a showing of abuse of discretion.' syllabus point 1., Id. That case, and one more recently decided, encourages amendment to promote the ends of justice:

'The purpose of the words 'and leave (to amend) shall be freely given when justice so requires' in Rule 15(a) W.Va.R.Civ.P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; . . .' Part syllabus point 3., Rosier v. Garron, Inc., W.Va., 199 S.E.2d 50 (1973).

Accordingly, we apprehend no error in the court's discretionary grant of leave to amend the pleading. On the other hand, the discussion which follows should indicate that the mere permission to assert a defense at trial does not necessarily authorize or warrant the giving of instructions to the jury on that point. The giving or refusal of instructions is not controlled merely by issues developed in pleading, but also depends upon the quantum of evidence introduced at trial supporting those issues. Britton v. South Penn Oil Co., 73 W.Va. 792, 81 S.E. 525 (1914).

Addressing the two substantive issues of the case, plaintiff insists that a review of the evidence requires this Court to...