Crockett v. United States

• Decision Date: 21 December 1940
• Docket Number: 4639.,No. 4638,4638
• Citation: 116 F.2d 646
• Parties: CROCKETT v. UNITED STATES. CROCKETT v. McELROY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

116 F.2d 646 (1941)

CROCKETT v. UNITED STATES.

CROCKETT v. McELROY et al.

Nos. 4638, 4639.

Circuit Court of Appeals, Fourth Circuit.

December 21, 1940.

Joseph M. Sanders, of Bluefield, W. Va. (Sanders & Day, Franklin K. Day, Jr., and Frank L. Smoot, all of Bluefield, W. Va., on the brief), for appellant.

Howell M. Tanner, of Bluefield, W. Va., and Charles M. Love, Jr., Asst. U. S. Atty., of Charleston, W. Va. (A. J. Lubliner, of Bluefield, W. Va., and Lemuel R. Via, U. S. Atty., and John W. Hereford, Asst. U. S. Atty., both of Huntington, W. Va., on the brief), for appellees.

Before DOBIE and NORTHCOTT, Circuit Judges, and H. H. WATKINS, District Judge.

NORTHCOTT, Circuit Judge.

In November, 1939, in the District Court of the United States for the Southern District of West Virginia, George H. McElroy instituted a civil action against Central Motor Sales Company, a corporation, J. C. Crockett, Robert Holt, Frank Ellison and Peter A. Hanna, to recover damages for personal injuries sustained by him on February 20, 1939, when an automobile alleged to have been operated by Frank Ellison and Robert Holt as the agents and representatives of Central Motor Sales Company, a corporation, and J. C. Crockett, collided with an automobile being operated by McElroy. Said collision was alleged to have resulted in severe injuries to McElroy and the demolition of the car operated by him. McElroy was an employee of the Federal Bureau of Investigation and the car operated by him was owned by the United States of America. The United States also instituted a civil action against the same defendants to recover damages to said automobile. A car operated by Peter A. Hanna, following the McElroy car, was also involved in the collision and Hanna was alleged to have been injured.

J. C. Crockett filed an answer in both cases, admitting that on the day of the accident he was trading and doing business as Central Motor Sales Company, but denied that said business was incorporated; and further alleged that he was the owner of the automobile which collided with the car being driven by McElroy, and that said automobile at the time of said accident was being operated by Frank Ellison, but denied that the said Frank Ellison or Robert Holt, another occupant of said car, were his agents or representatives, or engaged in any business for him at the time of said accident, and disclaimed any liability.

Peter A. Hanna filed a written answer denying any negligence on his part, and alleged that the sole cause of the accident was the joint negligence of McElroy and J. C. Crockett, Robert Holt and Frank Ellison. The answer further alleged that Hanna suffered personal injuries and property damage in said collision, and set up a counter-claim for said damages against McElroy, Crockett, Holt and Ellison.

On the day of trial, in January, 1940, Herbert Holt, improperly sued as Robert Holt, filed an answer setting forth that his correct name was Herbert Holt; that at the time of said accident he was riding in the Plymouth sedan owned by Crockett, but that he was not driving said car, and that at the time of said accident he was not acting as the agent or representative of J. C. Crockett, and was not engaged in any business for J. C. Crockett.

It was agreed by and between counsel for McElroy, Hanna, the United States of America, Crockett and Holt that said cases might be consolidated and heard together, and this was done by a proper order.

After the introduction of evidence on behalf of McElroy and the United States, Hanna, Crockett and Holt moved for directed verdicts, which motions were denied. Crockett and Holt then introduced their evidence and Hanna introduced his evidence and adopted the same testimony given on behalf of McElroy and the United States as to Holt being an agent of Crockett. Motions for directed verdicts were again overruled and after argument, and the charge of the trial judge, the case was submitted to the jury which returned the following verdicts: A verdict in favor of Hanna on McElroy's claim against Hanna; a verdict in favor of McElroy on Hanna's counter-claim against McElroy; a verdict in favor of Hanna on Hanna's counter-claim against Crockett, Holt and Ellison for the sum of $3,116.50; a verdict in favor of McElroy against Crockett, Holt and Ellison for $2,795.33; and a verdict in favor of the United States of America against Crockett, Holt and Ellison for $575.

Thereupon Crockett and Holt moved to set aside the verdicts and grant them a new trial, and to enter judgment in their favor notwithstanding the verdicts, which motions were overruled and judgment was entered in accordance with the verdicts. From this action J. C. Crockett brought this appeal, and is the sole appellant.

The accident occurred about four p. m., approximately one mile east of the corporate limits of the town of Princeton, West Virginia. McElroy, an F. B. I. agent, operating a car owned by the United States, was driving in a westerly direction toward the town of Princeton and Hanna was also driving in the same direction, closely following the car driven by McElroy. The evidence was to the effect that as McElroy ascended a slight hill he observed a truck approaching from the opposite direction and almost instantaneously a car, following close behind the truck, and travelling at a high rate of speed, attempted to pass the truck and collided with the car being driven by McElroy. The car operated by Hanna crashed into the rear of the McElroy car. Both McElroy and Hanna were injured and their cars damaged. The appellant, Crockett, does not question the fact that the negligence of Ellison, the driver of the Crockett-owned car, was the proximate cause of the accident.

Crockett was at that time engaged in the business of selling new and used cars at Princeton, under the name of Central Motor Sales. Ellison was not an employee of the appellant, Crockett. Other occupants of the Crockett-owned car, at the time of the accident, were Robert Weikel, who was riding on the front seat next to Ellison, Vergie Keatley, who was sitting on the front seat next to the right door and Herbert Holt who was lying in the rear seat. All of the occupants of the automobile were intoxicated, and Holt was either asleep or unconscious.

Holt had been in Crockett's service as automobile salesman for approximately one year prior to the accident, and was still in his service at the time of the trial. Holt did not have regular working days or hours and was not paid a salary but worked on a commission basis. He had the right to use appellant's automobiles for business purposes but did not have the right to use them for his own personal pleasure and convenience; when he had a prospect for a sale he would talk the matter over with Crockett and get his, Crockett's, permission to take the car out to demonstrate it; he had authority when demonstrating cars to prospective purchasers to allow them to drive the cars.

Prior to the day of the accident, Holt had a prospect for the sale of a car at Hiawatha, West Virginia. About nine o'clock on the morning of the accident, Holt inquired of Crockett whether he should take the car and go to see the prospect, and Crockett said he thought this would be a good idea. Holt then secured the keys to the car and drove it out of appellant's garage, intending to go to Hiawatha but did not go there, instead he drove the car down the main street of Princeton and met Frank Ellison, whom he had known for several years. Ellison got in the car and Holt asked him, Ellison, about one of Holt's prospects, for the purchase of a car, in Monroe County. They had talked about fifteen or twenty minutes when Robert Weikel came up and joined them. Ellison and Weikel were old friends but Holt had not met Weikel. Ellison testified that Holt tried to interest Weikel in a new De Soto car, but Weikel did not appear to be interested. Weikel then produced a bottle with liquor in it and Ellison, Holt and Weikel began to drink the liquor. After they consumed the liquor they had, they proceeded to the liquor store in Princeton and Ellison went in and purchased more liquor with money furnished by Weikel. During the course of the drinking, there was more talk between Holt and Weikel about Holt selling Weikel a car. They again went to the liquor store to secure another supply of whiskey and Holt testified that this was the last he remembered until he regained consciousness after the accident.

There is contradiction in the evidence as to whether Holt asked Ellison to drive the car after he, Holt, began to become intoxicated; Ellison testifying that about noon Holt asked him, Ellison, to drive but that he replied that he did not have an operator's license and that he, Ellison, said let Bob (Weikel) drive, and Bob started driving. Weikel drove the car to a sandwich shop, where beer was sold, located on the Princeton-Beckley highway, where they were joined by a woman, Vergie Keatley, who was also intoxicated.

None of the occupants of the car remembered where they went after leaving the sandwich shop until the time of the accident.

There is little or no dispute as to the facts, and the proximate cause of the accident was clearly shown to be the negligence of the drunken occupants of the Crockett-owned car. Appellant, Crockett, did not testify at the trial.

The sole question involved is whether, under the circumstances, the appellant, Crockett, is liable for the damages caused by the accident.

The liability of the appellant depends upon the law of West Virginia. Hudson et al. v. Moonier, 304 U.S. 397, 58 S.Ct. 954, 82 L.Ed. 1422. An examination of the West Virginia decisions shows some conflict. In Shahan v. Jones et al., 115 W.Va. 749, 177 S.E. 774, the syllabus (which in that state is the law of the case) reads as follows: "In an action against the owner of an automobile for damages resulting from its negligent operation by another, the issue of whether the driver was, at the time...