Laslo v. Griffith

• Citation: 143 W.Va. 469,102 S.E.2d 894
• Decision Date: 08 April 1958
• Docket Number: No. 10897,10897
• Court: Supreme Court of West Virginia
• Parties: Frank John LASLO v. Walter GRIFFITH et al.

Page 894

102 S.E.2d 894

143 W.Va. 469

Frank John LASLO v. Walter GRIFFITH et al.

No. 10897.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1958.

Decided April 8, 1958.

Syllabus by the Court

1. When the facts relied upon to establish the existence of an agency are undisputed, and conflicting inferences can not be drawn from such facts, the question of the existence of the agency is one of law for the court; but if the facts pertaining to the existence of an agency are conflicting, or conflicting inferences may be drawn from them, the question of the existence of the agency is one of fact for the jury.

2. When the evidence is conflicting the questions whether the relation of principal and agent existed and, if so, whether the agent acted within the scope of his authority and in behalf of his principal are questions for the jury.

3. The verdict of a jury on the questions whether the driver of an automobile was the agent of a defendant and was acting within the scope of his authority and in behalf of the defendant will not be disturbed by this Court if there is sufficient evidence to support the verdict.

4. When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it.

Sayre, Lynch & Henderson, G. Berk Lynch, Beckley, for plaintiff in error.

David D. Ashworth, George L. Ballard, Beckley, for defendant in error.

HAYMOND, President.

This is an action of trespass on the case instituted in the Circuit Court of Raleigh County in 1955, in which the plaintiff, Frank John Laslo, seeks a recovery from the defendants, Walter Griffith and William Hanks, an infant, for damages for injuries to the person and the property of the plaintiff sustained in a collision between a 1952 model Willys Overland 1-ton motor truck owned and driven by the plaintiff and a 1946 nodel Dodge automobile owned by Griffith and driven by Hanks on United States Route No. 41 at Stanaford in Raleigh County about eight o'clock on the morning of Sunday, July 24, 1955, which injuries were caused by the alleged negligence of the defendants.

Successive motions made by the defendant Griffith at the conclusion of the evidence offered in behalf of the plaintiff and after the introduction of all the evidence were overruled. The jury returned a verdict in favor of the plaintiff against both defendants for $1,200. The circuit court overruled a motion of the defendant Griffith to set aside the verdict and grant him a new trial and by order entered December 21, 1956, rendered judgment against both defendants for the amount of the verdict with interest and costs. To that judgment this Court granted this writ of error and supersedeas upon the application of the defendant Griffith on May 13, 1957. The defendant Hanks, for whom a guardian ad litem was appointed, was not represented by counsel at the trial and, no application for a writ of error having been made by him to this Court, within the prescribed time limit, to the judgment against him, that judgment is now final and unappealable.

The defendant Walter Griffith, who will hereafter be referred to in this opinion as the defendant, assigns as error the action of the circuit court (1) in overruling the motions of the defendant to strike the evidence of the plaintiff and to direct the jury to return a verdict in his favor; (2) in giving, over the objections of the defendant, Instructions Nos. 1 and 3 offered by the plaintiff; (3) in refusing to give Instruction A, in its original form, and Instructions B and G offered by the defendant; and (4) in overruling the motion of the defendant to set aside the verdict and to grant him a new trial.

The principal evidence concerning the manner of the occurrence of the collision, which resulted in painful but temporary personal injuries to the plaintiff and which caused him to lose earnings from his employment at the rate of $18.00 per day for a period of approximately thirteen days amounting to $234.00, and resulted in damages to his truck in the amount of $1200.00, consisted of the testimony of the plaintiff. He testified that a few minutes after eight o'clock on the morning of Sunday, July 24, 1955, while operating his truck on his right side of a straight downgrade section of United States Route No. 41 in the village of Stanaford in Raleigh County at a speed of twenty to twenty five miles per hour, the automobile owned by the defendant and driven by the defendant Hanks, approaching from the opposite direction on the highway at a speed of forty to fifty miles per hour, veered to its left of the center of the highway when about twenty five feet from the truck and without decreasing its speed struck the truck on its left hand side and knocked it into a ditch; that the impact caused four of six occupants riding in the bed of the truck to be thrown from the truck; and that the automobile of the defendant in which Jess Bragg and another man were riding with its driver continued up the grade for a distance of approximately one hundred feet from the point of the collision and then ran off the highway and came to rest near a billboard sign.

The defendants offered no evidence to controvert the plaintiff's version of the manner of the occurrence of the wreck and did not assert as a defense against the claim of the plaintiff that Hanks, the driver of the automobile, was not guilty of negligence or that the plaintiff was guilty of contributory negligence. The principal contention of the defendant in support of his assignments of error is that the evidence fails to show that at the time of the collision Hanks was the agent of the defendant and was acting within the scope of his authority to operate the automolbile. For this reason the defendant insists upon this writ of error that he is not liable for the negligence of Hanks in the operation of the automobile and that on that ground the judgment of the circuit court should be reversed.

Hanks, who was eighteen years of age at the time of the wreck, who lived with his grandparents at a distance of about 500 yards from a house occupied by Frank Huffman, and who was produced as a witness in behalf of the plaintiff, testified that he was acquainted with the defendant and had driven his automobile on several previous occuasions when the defendant had been drinking and was nervous; that, in connection with his use of the automobile, he first saw the defendant about four o'clock in the morning of the day of the wreck when the defendant, accompanied by Jess Bragg, drove the automobile to the house of Frank Bennett; that at the request of the defendant he got in the automobile accompanied by Frank Huffman, Jr.; that the defendant then drove the automobile past the house in which Hanks lived without stopping and continued to drive it to Huffman's home where Huffman left the automobile; that after Huffman had gone to his home Bragg, whom Hanks had never seen before and did not know, said he wanted to go home and that, as the defendant 'couldn't drive him', the defendant asked Hanks to drive Bragg home; that Hanks did not know where Bragg lived and that, as Hanks wanted a boy named Gayle Whiting to accompany him on the trip to Bragg's home, the defendant drove the automobile a distance of about a half a mile to Whiting's home; that Hanks inquired of Whiting's mother if he was at home and was informed by her that he was not there; that the defendant, accompanied by Bragg and Hanks, drove the automobile to a vacant space off the improved road in front of a store operated by a man named Bowles, known as the Hilltop Grocery, a short distance from the home of the defendant; that the defendant had told Hanks that it was 'all right' for Whiting to go with Hanks when he took Bragg home; that when the defendant stopped the automobile near his home he told Hanks to take Bragg home, left the automobile, and said he was going to his home; that Hanks then got in the driver's seat and with Bragg in the automobile drove to the home of the Whiting boy and found that he had not yet returned to his home; that Hanks continued to drive the automobile 'up and down the road' in search of Whiting, went to the Bennett house and another house at Stanaford, and came back to the Bennett house about seven thirty o'clock; that Whiting was then at the Bennett house and at the request of Hanks got in the automobile with him and Bragg, who had not left the automobile at any time; that Hanks with Bragg and Whiting in the front seat of the automobile started from the Bennett house at Lanark to take Bragg to his home at Abraham and had driven the automobile on the trip for a distance of about two miles when the collision with the plaintiff's truck occurred at Stanaford; that after the collision Hanks left Bragg at the scene of the wreck and ran barefooted to the home of his grandmother which was located about two miles from the place where the collision occurred; that he did not report the collision to the defendant; that at the time of the collision the only occupants of the automobile were Hanks, Bragg and Whiting; that Hanks and Bragg were together from the time they left the defendant about four o'clock until the wreck occurred about eight o'clock; and that while Hanks was with the defendant and Bragg they were not intoxicated and they did not drink any intoxicants in his presence.

Hanks also testifided that on July 28, four days after the collision, he was arrested on a warrant obtained by the defendant charging him with unlawfully taking the automobile without the consent of the defendant, its owner, and depriving the defendant of its possession; that he was taken to the office of a justice and there entered a plea of guilty to the charge. He further testified to the effect that as he did not possess a license to operate an automobile he though...