Jenrett v. Smith

• Decision Date: 15 December 1983
• Docket Number: No. 15873,15873
• Citation: 173 W.Va. 325,315 S.E.2d 583
• Court: West Virginia Supreme Court
• Parties: Ernest JENRETT v. Donald SMITH.

Page 583

315 S.E.2d 583

173 W.Va. 325

Ernest JENRETT v. Donald SMITH.

No. 15873.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1983.

Rehearing Denied April 11, 1984.

Syllabus by the Court

1. For purposes of determining whether a co-employee "is acting in furtherance of the employer's business" under W.Va.Code, 23-2-6a [1949], and thereby entitled to immunity from tort liability, a "dual purpose" trip, that is, a journey by an employee that serves both personal and business reasons, is a personal trip if it would have been made even though the business aspect of the journey was cancelled. However, it is a business trip if the journey would have gone forward even though the personal errand was cancelled. In any event, if the injury or death of an employee prevents the trip from going forward, the journey may still be a business trip if the business task would have been done by some other employee at some other time.

2. "Though wide latitude is accorded counsel in arguments before a jury, such arguments may not be founded on facts not before the jury, or inferences which must arise from facts not before the jury." Syl. pt. 3, Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961).

3. "An instruction should not be given when there is no evidence tending to prove the theory upon which the instruction is based." Syl. pt. 4, Hovermale v. Berkeley Springs Moose Lodge No. 1483, W.Va., 271 S.E.2d 335 (1980).

4. " 'It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given.' Syl. pt. 2, Jennings v. Smith, 272 S.E.2d 229 (W.Va.1980), quoting, syl. pt. 3, Morgan v Price, 151 W.Va. 158, 150 S.E.2d 897 (1966)." Syl. pt. 2, McAllister v. Weirton Hospital Co.,, 312 S.E.2d 738 (1983).

5. An instruction is proper if it is a correct statement of the law and if there is sufficient evidence offered at trial to support it.

6. "As a general rule the order of introducing testimony during a trial rests within the sound discretion of the trial court, and a departure from the usual order of introduction of evidence does not constitute error unless it amounts to an abuse of discretion." Syl. pt. 2, Allegheny Development Corp. Inc. v. Barati, W.Va., 273 S.E.2d 384 (1980).

Leo Catsonis, Charleston, Huddleston, Bolen, Beatty, Porter & Copen, Fred Adkins and Barbara L. Ayres, Huntington, Lord, Bissell & Brook, Hugh C. Griffin and Thomas Strueber, Chicago, Ill., for appellant.

Hankins & Taylor and John H. Hankins, Huntington, De Trapano & Jackson and P. Rodney Jackson, Charleston, for appellee.

McHUGH, Justice:

This action is before this Court upon the appeal of Donald Smith, appellant and defendant below, from a final order of the Circuit Court of Cabell County awarding Ernest Jenrett, appellee and plaintiff below, damages in the amount of $288,750 plus costs and interest. The suit for such damages arose out of an accident that occurred at Tri-State Airport on February 10, 1979, when the appellee came in physical contact with the rotating propeller of an airplane owned and operated by the appellant. This Court has before it the petition for appeal, all matters of record and the briefs and oral argument of counsel.

The appellant in this case, Donald Smith, is the president and treasurer of Huntington Motors Sales, Inc. (hereinafter "Huntington Motors"), located in Huntington, Cabell County, West Virginia. Huntington Motors is engaged in the business of selling automobiles including four-wheel-drive vehicles. Mary Faye Smith, the appellant's wife, is the vice president and secretary of Huntington Motors and together they are the sole shareholders of the corporation. The appellant is also a licensed pilot and at the time of the accident owned a twin engine airplane known as a Cessna 337 Super Skymaster and maintained such airplane at Tri-State Airport. The airplane has a unique configuration in that it has propellers on the front and rear of the fuselage. The airplane is used by the appellant for business and pleasure.

The appellee, Ernest Jenrett, was an employee of Huntington Motors on the day of the accident. He was a "detail" man whose duties included washing cars, janitorial work and other general labor. The record indicates that the appellee had washed and painted the airplane on several occasions prior to the accident.

The accident in question occurred on February 10, 1979, as the appellant and his wife were preparing to fly to Florida. When the Smiths arrived at the airport, several employees of the airport were in the process of "pre-heating" the engines of the airplane to facilitate their ignition. However, when the appellant attempted to start the airplane, the rear engine failed to start.

Mrs. Smith then called Huntington Motors and asked two employees, the appellee and Mark Meadows, to come to the airport and bring equipment to help warm the engine. In the meantime, the appellant had taxied the airplane, by use of the front engine, to another hangar at the airfield to enlist the assistance of other airport equipment. The appellant was successful in his second attempt to start the rear engine.

When the appellee and Meadows arrived, they were met at the gate by Mrs. Smith and informed that they were no longer needed. The record indicates, however, that the appellee entered the gate leading to the paved area in front of the hangar where the appellant's airplane was located. He positioned himself somewhere between the left wing of the airplane and the hangar. The record is not clear as to the exact position of the appellee, but it is uncontested that after walking toward the area of the airplane, the appellee's hat was blown off toward the rear of the aircraft. The appellee proceeded toward the rear of the airplane to retrieve the hat and at that time came in contact with the rotating propeller of the rear engine. The appellee's left arm was severed at the shoulder.

The appellee submitted a claim for worker's compensation and was awarded benefits totalling approximately $27,000. The appellee also filed a complaint against the appellant as an individual alleging negligence in the operation of the airplane and praying for damages. In his answer, the appellant asserted, inter alia, the defense of co-employee tort immunity under West Virginia's worker's compensation statutes, specifically, W.Va.Code, 23-2-6a [1949]. ¹

Upon motion of the appellant, this action was bifurcated into two trials pursuant to Rule 42(c) of the West Virginia Rules of Civil Procedure. ² The first issue presented to the jury was whether the appellant was acting "in furtherance of the employer's business" when he was about to travel to Florida on the day of the accident and, therefore, entitled to co-employee immunity. ³ If the jury found that he was not acting in furtherance of the business of Huntington Motors, then the trial would proceed to the second trial which was on the issue of the relative fault of the parties.

The appellant had the burden in the first trial to prove by a preponderance of the evidence that he was acting in furtherance of the business of Huntington Motors on the day of the accident. The appellant testified that the purpose of his trip to Florida was to purchase a number of four- wheel-drive vehicles for resale in West Virginia. The appellant stated that it was common practice to purchase additional vehicles on the open market when the demand for such vehicles outweighed the allocation from the manufacturer. The appellant indicated that over the years he has developed a system of "spotters" throughout the eastern United States to inform him of surplus supplies of four-wheel-drive vehicles. In Stuart, Florida, a "spotter" named J.C. Williams had informed him of such a surplus in that area. The appellant and his wife testified that on the day of the accident they had in their possession a cashier's check and various dealer licenses to purchase the vehicles and transport them to West Virginia.

The appellee asserted in the first trial that the sole purpose of the trip to Florida was pleasure. The appellee introduced evidence that the Smiths owned a boat and a trailer in the area of Stuart, Florida, and that it was a common location for them to vacation. The appellee also introduced into evidence two accident reports of the Federal Aviation Administration upon which the appellant had indicated that the sole purpose of the trip to Florida was pleasure. At the close of the first trial the jury determined that the appellant was not acting in furtherance of the business of Huntington Motors when the accident occurred and, therefore, was not entitled to immunity from liability. The trial then proceeded to the issue of negligence.

In the second trial relating to the issue of negligence, the parties introduced conflicting expert testimony concerning the manner in which the appellant operated the airplane on the day of the accident. Jayme Serra, an expert for the appellee, testified that the appellant should have warned the appellee of the danger of propellers and that it was improper procedure to position the airplane in front of the hangar for the purpose of "pre-heating" the engines. The appellant's expert, Jesse Stonesipher, testified that the appellant's operation of the airplane was not unusual. Stonesipher indicated that it would not have been possible for the appellant to prevent the accident inasmuch as he could not have stopped the propeller in time even if he had seen the appellee enter the airfield. The appellant attempted to show that the appellee was equally at fault for the accident. The jury returned a verdict finding the appellant 75% at fault and the appellee 25% at fault for the accident. The jury awarded the appellee total damages in the amount of $385,000. In a final order entered May 11, 1982, the Circuit Court of ...