Hoover v. J. P. Neff & Son Inc

• Decision Date: 06 September 1944
• Citation: Hoover v. J. P. Neff & Son Inc, 31 S.E.2d 265, 183 Va. 56 (1944)
• Court: Virginia Supreme Court
• Parties: HOOVER. v. J. P. NEFF & SON, Inc.

31 S.E.2d 265

183 Va. 56

HOOVER.

v.J. P. NEFF & SON, Inc.

Supreme Court of Appeals of Virginia.

Sept. 6, 1944.

Error to Circuit Court, Augusta County; Floridus S. Crosby, Judge.

Action of trespass on the case by William R. Hoover, administrator, against J. P. Neff & Son, Inc., to recover damages for death of plaintiff's intestate. To review a judgment for defendant notwithstanding the verdict, the plaintiff brings error.

Reversed and final judgment entered on the verdict.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

J. Sloan Kuykendall and R. Gray Williams, both of Winchester, and Forest T. Taylor and Charles Curry, both of Staunton, for plaintiff in error.

John D. White, of Staunton, and C. E. Hunter, of Roanoke, for defendant in error.

CAMPBELL, Chief Justice.

This action of trespass on the case was brought by plaintiff in error against the defendant corporation to recover damages for the death of his daughter, Rosa Lee Hoover. There was a trial by a jury which resulted in a verdict in favor of the plaintiff. On motion of the defendant, the verdict of the jury was set aside and judgment was entered for the defendant pursuant to the provisions of section 6251 of the Code of Virginia.

The facts pertaining to the injury complained of may be thus stated:

The defendant, a Virginia corporation, owned and operated large and valuable commercial orchard properties situated in the county of Augusta; it also owned and operated a number of motor trucks in connection with the business, and employed a number of employees to operate the trucks in connection with its orchard operations. On the night of October 18, 1941, one of its trucks, driven by one Frank Burford, was left unattended, in a disabled condition, standing in the direct line of travel on State highway No. 254 at a point about three miles west of the city of Staunton. Contrary to the statute, no flares or lights were placed by Burford to warn travelers of the dangerous situation. A sedan, operated by William Roy Hoover and occupied by decedent (an infant approximately two years of age) and several guests, collided in the darkness with the truck of defendant and caused the death of decedent and three other persons. While conceding that the truck involved in the accident was its property and that the truck was being operated by Frank Burford on the night in question, defendant contends that Burford was not its employee or servant at and immediately prior to the accident, and that he was not acting within the scope of his employment while operating the truck involved in the accident.

At the conclusion of plaintiff's evidence, defendant moved to strike the evidence on the ground that plaintiff had failed to show that Burford was acting for and on the business of defendant at the time of the accident and that the use of the truck by Burford was merely permissive.

The motion to strike the evidence was overruled. At the conclusion of the evidence, defendant renewed its motion to strike plaintiff's evidence and enter judgment for the defendant. This motion was also overruled, and the case was submitted to the jury upon instructions offered by plaintiff and defendant and the following instruction given to the jury by the court upon its own motion:

"The court instructs the jury that leaving the defendant's truck on Route 254 at dusk, or just as nightfall was coming, without flares or lights and unattended, was negligence as a matter of law.

"And if they believe from the evidence that, at the time of committing the said negligence, the said Burford was an employee of the defendant and acting within the scope of his employment and about his employer's business, and not acting in conflict with material orders and instructions given him by the defendant, either oral or verbal, and communicated to him, then they should find for the plaintiff."

At the conclusion of the case defendant moved the court to set aside the verdict of the jury, on the ground that it was contrary to the law and the evidence and to enter final judgment for defendant. This motion the court sustained.

The prevailing rule relative to the motion to strike out a plaintiff's evidence has been clearly stated by Mr. Justice Epes in Green v. Smith, 153 Va. 675, 151 S.E. 282, 283, as follows:

"In considering a motion to strike out all the plaintiff's evidence, the evidence is to be considered very much as on a demurrer to the evidence. All inferences which a jury might fairly draw from plaintiff's evidence must be drawn in his favor;and where there are several inferences which may be drawn from the evidence, though they may differ in degree of probability, the court must adopt those most favorable to the party whose evidence it is sought to have struck out, unless they be strained, forced, or contrary to reason. Dove Co. v. New River Coal Co., 150 Va. 796, 143 S.E. 317; Limbaugh v. Commonwealth, 149 Va. [383], 393, 140 S.E. [133], 135; Goshen Furnace Corp. v. Tolley's Adm'r, 134 Va. 404, 114 S.E. 728."

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