Griffith v. George Transfer & Rigging, Inc., 13193

• Decision Date: 18 December 1973
• Docket Number: No. 13193,13193
• Citation: 201 S.E.2d 281,157 W.Va. 316
• Parties: James E. GRIFFITH et al. v. GEORGE TRANSFER AND RIGGING, INC.
• Court: West Virginia Supreme Court

Page 281

201 S.E.2d 281

157 W.Va. 316

James E. GRIFFITH et al. v. GEORGE TRANSFER AND RIGGING, INC.

No. 13193.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1973.

Decided Dec. 18, 1973.

Syllabus by the Court

1. A motion for a default judgment is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.

2. One who carries on an activity which requires a franchise from a public authority and involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to others by the negligence of a contractor employed to perform the franchise activity.

3. Where a public authority grants to an individual or a corporation the right to engage in dangerous activities, which right is denied the general public, the duty to safeguard the public while performing its franchise activities is not delegable, the franchise holder being responsible for the conduct of those whom it permits to act under its franchise and this includes an independent contractor.

4. Whether the driver-owner of a tractor trailer, under exclusive lease to a corporation, which corporation holds an I.C.C. certificate, evidence of which is prominently displayed on the tractor trailer, was acting within the scope of his employment and about his employer's business at the time of a collision, is generally a question of fact for the jury and a jury determination on that point will not be set aside unless clearly wrong.

Donell, Tarr, De La Mater & Hagg, W. Dean De La Mater, Weirton, for appellant.

Pinsky, Mahan, Barnes, Watson, Cuomo & Hinerman, Richard W. Barnes, Frank Cuomo, Jr., Wellsburg, for appellees.

CAPLAN, Justice:

This is an appeal from a final order of the Circuit Court of Brooke County entered in an action which arose out of a collision between a vehicle owned and operated by defendant John Herilla and a motorcycle operated by plaintiff Gary Lee Griffith. At the time of the collision the Herilla vehicle was under lease to defendant George Transfer and Rigging, Inc. That action was instituted by James E. Griffith, individually, and by Gary Lee Griffith by James E. Griffith, his father and next friend.

George Transfer and Rigging, Inc. is engaged in the business of transporting property for hire and in furtherance thereof has acquired and holds the necessary permits, licenses and certificates from the Interstate Commerce Commission and regulating authorities of several states. As a part of its business George Transfer leased certain trucking equipment from individual owners. Pursuant to that practice George Transfer entered into lease agreements with John Herilla for the exclusive use of a tractor and trailer. The agreements were designated 'Motor Vehicle Lease Agreement No. 907026' and 'Trailer Lease Agreement No. 9030314.'

Under the provisions of these agreements John Herilla, the owner, was to supply the driver of the aforesaid equipment and any other employees necessary for the fulfillment of his obligations. He was to supply the equipment and driver at George Transfer's terminal at Mingo Junction, Ohio. Basically, the agreement provided that the owner would maintain the equipment in good repair at his expense; that he would pay such expenses as motor fuel, oil, tires and other accessories; and that he would pay taxes, assessments, licenses and all other expenses necessary for the operation of the leased equipment. It was therein specified that the relationship between the parties was that of independent contractor and not that of employer and employee.

It is further provided in the agreement that George Transfer, as a common carrier by motor vehicle, is subject to Interstate Commerce Commission regulations and that Mr. Herilla shall comply fully with such regulations. The agreement then reads 'but that George has not the right to, and will not control the manner or prescribe the method of doing that portion of the operations which is contracted for in this Agreement by Owner, except such control as can reasonably be construed to be required by said regulations.' The parties agreed that if the owner or any of his employees operate the subject equipment in any manner which varies from the regulations or the express directions or orders of George Transfer or beyond the scope of George's operating authority or use the equipment for his own purpose or the purpose of any person other than George, the agreement shall terminate and all obligations and liability of the lessee shall immediately cease.

These agreements, prepared by George Transfer, were entered into on June 1, 1966 and were in effect on July 13, 1967, the day of the collision which gave rise to this action. On July 12, 1967 John Herilla, the owner and driver of the leased equipment, after having delivered a shipment of steel to Richmond, Virginia, returned to George Transfer's terminal at Mingo Junction, Ohio where he endeavored to obtain another load. Finding none, he returned the next morning when he was told that no loads suitable to his equipment were available. He remained at the terminal, awaiting an appropriate load, until 4:00 P.M. when he informed the dispatcher that he wanted to take the tractor trailer to his home in Bentleyville, Pennsylvania for the purpose of repairing a spring leaf. He said he would return on Monday morning, July 17, 1967. According to Mr. Herilla's testimony he was taking his equipment home to make repairs at the direction of George Transfer's dispatcher. He further testified that in order to take any time off he had to obtain permission from the dispatcher.

During this forty-five mile trip from the George Transfer terminal to his home, John Herilla, while driving the subject tractor-trailer through Wellsburg, West Virginia, was involved in a collision with a motorcycle driven by plaintiff Gary Lee Griffith. Inasmuch as the jury has decided the question of liability in favor of the plaintiffs and no error has been assigned in relation to the finding of negligence on the part of Herilla, it is not deemed necessary to further detail the circumstances of the collision.

As a result of that collision the plaintiffs instituted the civil action alluded to above. In the complaint filed pursuant thereto it was alleged that Gary Lee Griffith was severely and permanently injured by reason of the negligent operation of the tractor trailer while operated by John Herilla. Alleging that Herilla was driving the vehicle pursuant to his 'agency and employee relationship' with defendant George Transfer, the plaintiffs imputed the alleged negligence of Herilla to George Transfer. In that action James E. Griffith also sought recovery of medical expenses incurred by reason of injuries suffered by his son and damages for the loss of the latter's wages.

George Transfer moved to dismiss the complaint for failure to state a cause of action upon which relief could be granted on the ground that there were insufficient facts alleged to show any duty on its part to the plaintiffs. It also moved to strike all allegations in the complaint pertaining to an agency or master-servant relationship between it and John Herilla, contending that the allegations of such relationship were insufficient to impute Herilla's conduct to George Transfer. These motions were overruled by the court. George Transfer, in its answer to the complaint denied that John Herilla was driving his tractor-trailer rig pursuant to any agency or employee relationship. Defendant George Transfer subsequently filed a Motion for Summary Judgment contending that as a matter of law no such agency or employee relationship existed and that, therefore, the negligence, if any, of Herilla could not be imputed to it. This motion was also overruled. A jury trial followed, at the conclusion of which a verdict for the plaintiffs in the sum of $4,000.00 was returned against George Transfer and Rigging, Inc. and John Herilla. It is from the judgment entered on that verdict that this appeal is prosecuted by George Transfer. John Herilla did not seek an appeal and the judgment against him is final.

The appellees cross assign error on this appeal alleging that the court should have granted its motion for a default judgment on the ground that George Transfer failed to answer the complaint within the period prescribed by the rules of procedure and that no good cause was shown for the granting of its motion for an enlargement of time.

The authority cited by the appellees on their cross assignment of error relates largely to the setting aside of default judgments. In the instant case the circuit court refused to enter a default judgment on the motion of the appellees. It has long been well settled that the granting or refusal of a default judgment lies in the exercise of the trial court's discretion and that the action of the court will not be disturbed unless there is evidence that there has been a clear abuse of such discretion. See McDaniel v. Romano, W.Va. 190 S.E.2d 8 (1972); Intercity Realty Company v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970); Vandervelde v. Put & Call Brokers and Dealers Association, Inc., 43 F.R.D. 14 (D.C.N.Y.1967); and Anderson v. Stanco Sports Library, Inc., 52 F.R.D. 108 (D.C., S.C.1971). Here the court found that the failure of the defendant, George Transfer, to file a timely answer to the complaint was occasioned by what the court termed excusable neglect and refused to enter a default judgment. Inasmuch as we cannot say that the court was clearly wrong in so ruling, such ruling will not be disturbed on this appeal.

The principal issues presented on this appeal are: (1) Was there, as a matter of law, a sufficient relationship shown between John Herilla and George Transfer from which the law would impute the negligence of the former to the latter? (2) Even if there were such a relationship, was there, as a matter of law,...