Hackley v. Robey

• Decision Date: 10 March 1938
• Citation: 170 Va. 55
• Court: Virginia Supreme Court
• Parties: J. B. HACKLEY AND J. B. HACKLEY, JR. v. C. L. ROBEY, ADMINISTRATOR OF RATCLIFFE MERCHANT, DECEASED.

Page 55

170 Va. 55

J. B. HACKLEY AND J. B. HACKLEY, JR. v. C. L. ROBEY, ADMINISTRATOR OF RATCLIFFE MERCHANT, DECEASED.

Supreme Court of Virginia, Richmond.

March 10, 1938.

Present, All the Justices.

1. APPEAL AND ERROR — Appeal Bond — Issuance of Writ by Clerk Not Condition Precedent — Case at Bar. — In the instant case a motion was made to dismiss the writ of error on the ground that no valid supersedeas bond was given within six months of the date of final judgment, as required by section 6355 of the Code of 1936. A writ of error and supersedeas was awarded by order of the Supreme Court of Appeals on January 20, 1937, and a bond in proper form was executed and filed on January 23, the last day of the six-month period, but the writ and supersedeas required by section 6350 of the Code of 1936 was not issued by the clerk of the Supreme Court of Appeals until January 25. It was contended that the bond, if not void, did not become effective until January 25 and hence was too late.

Held: That the contention was not sound, as there is no suggestion in the statute that the bond must be given or shall become effective only after the issuance of the writ by the clerk.

2. APPEAL AND ERROR — Appeal Bond — Bond Given after Award of Writ by Court but before Issuance by Clerk — Case at Bar. — In the instant case a motion was made to dismiss the writ of error on the ground that no valid supersedeas bond was given within six months of the date of final judgment, as required by section 6355 of the Code of 1936. A writ of error and supersedeas was awarded by order of the Supreme Court of Appeals on January 20, 1937, and a bond in proper form was executed and filed on January 23, the last day of the six-month period, but the writ and supersedeas required by section 6350 of the Code of 1936 was not issued by the clerk of the Supreme Court of Appeals until January 25. It was contended that the bond, if not void because given before issuance of the writ and supersedeas by the clerk, did not become effective until January 25 and hence was too late.

Held: That the bond was given after the writ of error had been granted, for the writ of error was "granted" by the order of the Supreme Court of Appeals, and not by the subsequent issuance of process by the clerk.

3. APPEAL AND ERROR — Transfer of Cause — Service of Process. — When a writ of error or appeal has been granted and the record and petition have been delivered to the clerk and bond executed as required by law, the case is properly on the clerk's docket. Process or summons simply matures the case for hearing by the Supreme Court of Appeals.

4. APPEAL AND ERROR — Appeal Bond — Issuance of Writ by Clerk Not Condition Precedent. — The issuance of a writ of error by the clerk of the Supreme Court of Appeals is not a condition precedent to the validity of the supersedeas bond required by section 6355 of the Code of 1936.

5. APPEAL AND ERROR — Appeal Bond — Giving Prior to Issuance or Award of Writ of Error — Section 6338 of the Code of 1936. — Section 6338 of the Code of 1936 provides that a judgment debtor may, in lieu of a suspending bond, file in the clerk's office below a supersedeas bond, thereby expressly recognizing that a supersedeas bond may be given before the writ of error is issued or even awarded.

6. AUTOMOBILES — Liability of Host to Guest — Physical Facts Warranting Inference of Gross Negligence — Case at Bar. — The instant case was an action to recover for the death of a guest in a car which overturned on a bridge. Defendant contended that there was no proof to show how the accident happened and no evidence of gross negligence, since there were no eyewitnesses to the accident and the driver had no recollection of it, due to the injuries he suffered. The street in approaching the bridge was level, straight and well lighted, and an eight-inch curb, which marked the boundaries of the street, and the abutments of the bridge were plainly visible; at the narrowest point on the bridge the street had a width of forty-two feet and six inches; the driver was familiar with the situation, as he had driven across the bridge only a few minutes before the accident. The car ran up over the eight-inch curb, sideswiped a lamppost on the sidewalk, turned completely over, skidded along the street and across the bridge, and came to a stop one hundred and eighty-nine feet from the first point of collision.

Held: That from these facts the jury had the right to infer that the driver was driving the car at a very high rate of speed; that he was maintaining no lookout for a situation that was plainly obvious to him, if, indeed, he was not actually familiar therewith; and that, under the circumstances, this constituted gross negligence.

7. AUTOMOBILES — Liability of Host to Guest — Contributory Negligence — Case at Bar. — The instant case was an action to recover for the death of a guest in a car which overturned on a bridge. There were no eyewitnesses to the accident, and the driver of the car testified that he had no recollection of it other than that he was driving the car. Defendants contended that the guest was guilty of contributory negligence, but there was no evidence that he did or failed to do anything which in any way caused or contributed to the accident.

Held: That there was no evidence to support defendants' contention.

8. PARENT AND CHILD — Liability of Parent for Child's Tort. — In the absence of the relation of master and servant, or principal and agent, a father is not liable for the tort of his child.

9. AUTOMOBILES — Liability of Owner — Family Purpose Doctrine Rejected. — Where the head of a family supplies an automobile for the use and pleasure of the family, permitting the members thereof to use it at will, any member of the family thus using the automobile solely for his or her own recreation and pleasure does not become the agent of the head of the family, so as to make the latter liable for damages resulting from the negligent operation of such car. In so far as a contrary view is expressed in Litz Harman, 151 Va. 363, 379, 144 S.E. 477, 482, and in Baptist Slate, 162 Va. 1, 173 S.E. 512, the same is expressly overruled.

10. AUTOMOBILES — Liability of Owner — Permitting Operation by Driver Known to Be Incompetent. — Where the owner of an automobile permits it to be driven by one known by him to be an incompetent or unfit driver, he is liable for his own negligence in knowingly entrusting the automobile to such person.

11. AUTOMOBILES — Liability of Owner — When Son in Control for Own Pleasure — Case at Bar. — In the instant case, an action for the wrongful death of a guest who was killed while riding in an automobile owned by one defendant and driven by his son, the other defendant, there was a verdict in favor of plaintiff against both defendants. The father was not in the car at the time of the accident, nor was it being driven on any business of his, but, on the contrary, it was being driven by the son for his own pleasure and accommodation, with the permission of his father.

Held: That the judgment must be reversed as to the father.

Error to a judgment of the Circuit Court of Loudoun county. Hon. J. R. H. Alexander, judge presiding. Judgment for plaintiff. Defendants assign error.

The opinion states the case.

Charles Pickett and James Keith, for the plaintiffs in error.

E. E. Garrett, Stilson H. Hall and James G. Martin & Son, for the defendant in error.

EGGLESTON, J., delivered the opinion of the court.

This is an action for wrongful death brought by the administrator of Ratcliffe Merchant, who was killed while riding in an automobile owned by J. B. Hackley and driven by his son, J. B. Hackley, Jr. There was a verdict for $5,000 in favor of the administrator against both J. B. Hackley and J. B. Hackley, Jr., on which the trial court entered the judgment which is here for review.

First, there is a motion to dismiss the writ of error on the ground that no valid supersedeas bond was given within six months of the date of the final judgment, as required by Code, section 6355 (as amended by Acts of 1926, ch. 10, p. 19).

A writ of error and supersedeas was awarded by order of this court on January 20, 1937. A bond in proper form was executed and filed on January 23rd, the last day of the six-month period. But the writ and supersedeas required by Code, section 6350, was not issued by the clerk of this court until January 25th. It is argued that the bond, if not void, did not become effective until the latter date, and hence was too late.

This contention is not sound. There is no suggestion in the statute that such bond must be given or shall become effective only after the issuance of the writ by the clerk.

It is true that we said in Branch Richmond Cold Storage, 146 Va. 680, 688, 132 S.E. 848, 851, that the bond can be given "only after a writ of error has been granted." That was done in this case, for the writ of error was "granted" or "awarded" by the order of this court (Code, section 6348, as amended by Acts 1920, ch. 300, p. 416; Acts 1922, ch. 45, p. 47), and not by the subsequent issuance of process by the clerk.

3, 4 In D. F. Tyler Corp. Evans, 156 Va. 576, 579, 580, 159 S.E. 393, 394, it was said: "When a writ of error or appeal has been granted and the record and petition have been delivered to the clerk and bond executed as required by law, the case is properly on the clerk's docket. Process or summons simply matures the case for hearing by this court." It follows from this, we think, that the issuance of the writ by the clerk is not a condition precedent to the validity of the bond.

Furthermore, since the decision in Branch Richmond Cold Storage, supra, the General Assembly has by the Acts of 1934, ch. 130, p. 172, amended Code, section 6338 (Code 1887, section 3456, as theretofore amended by Acts of 1908, ch. 31, p. 36), so as to provide that a judgment debtor, in contemplation of applying to this court for an appeal...