Levine v. Peoples Broadcasting Corp.

• Decision Date: 23 February 1965
• Docket Number: No. 12334,12334
• Citation: 140 S.E.2d 438,149 W.Va. 256
• Court: West Virginia Supreme Court
• Parties: Max LEVINE v. PEOPLES BROADCASTING CORP. and Carl McKinney.

Page 438

140 S.E.2d 438

149 W.Va. 256

Max LEVINE v. PEOPLES BROADCASTING CORP. and Carl McKinney.

No. 12334.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1965.

Decided Feb. 23, 1965.

Syllabus by the Court

1. Where the evidence relative to whether a particular person is an independent contractor or an employee is in conflict or, if not in conflict, admits of more than one reasonable inference, an issue is presented for jury determination.

2. 'An act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act is within the scope of the employment.' Syl. Pt. 2, Cochran v. Michaels, 110 W.Va. 127 .

3. Where the evidence, though not in conflict, admits of more than one reasonable inference as to the relationship between two parties and, if the relationship be found to be that of employer-employee, whether such employee was acting within the scope of his employment at the time of the commission of a negligent act, such issues are for jury determination upon proper instruction by the court and the jury's finding thereon should not be disturbed.

George W. May, Alfred J. Lemley, Fairmont, for appellant.

Furbee & Hardesty, Russell L. Furbee, Thomas J. Whyte, Fairmont, for appellees.

BROWNING, President:

Plaintiff, Max Levine, instituted this action in the Circuit Court of Marion County to recover damages to his premises, equipment and merchandise, situated on the first floor of a building in Fairmont, West Virginia, caused by water flowing from a broken water pipe in the rest room of the defendant, Peoples Broadcasting Corporation, hereinafter referred to as 'Broadcasting', located on the second floor of the building. The water pipe was broken when the defendant, Carl McKinney, weighing 328 pounds, attempted to raise himself from the toilet seat by leaning on the washbasin. The jury returned a verdict for the plaintiff against both defendants in the sum of $4,090.00. A joint motion to set aside the verdict and enter judgment for the defendants was sustained as to Broadcasting, to which action this Court granted an appeal on May 18, 1964.

The facts are not in dispute. In May, 1962, Broadcasting, feeling that there was a need in the community for barbershop singing, auditioned a quartet called the 'Discords' of which McKinney was a member. The audition was made by tape recording which was thereafter played to the program director and the manager and resident vice president of Broadcasting, who found it to be of satisfactory quality for broadcasting over Broadcasting's radio station WMMN, in Fairmont. A time period, 1:10 p. m. to 1:30 p. m., Mondays, was allotted to the quartet, which thereafter made weekly tape recordings at the station to be broadcast at that time. Spot commercials, unconnected with the quartet, were made before and after the program. The weekly tape recordings were made at a time convenient to the station announcer and the quartet. Broadcasting, in its discretion, could refrain from broadcasting any or all of the tape recordings made by the quartet or allocate them to a different time spot; designate the type of music they were to sing; terminate the arrangement at any time; and owned and operated the equipment used in making the tape recordings. No wages or other remuneration were paid by Broadcasting to the quarter, the members deeming the publicity thus obtained to be sufficient in this regard. This arrangement continued for almost one year.

On the night of April 11, 1963, the quartet made a tape recording to be played the following week, after which three of the members left the station. McKinney remained for the purpose of using the musical library of the station in order to find additional selections suitable for use by the group and, during this time, availed himself of the rest room facilities. In raising himself from the toilet seat, he rested his weight on the washbasin, pulling it from the wall and breaking the cold water pipe with the consequent flooding and damage to plaintiff's premises and merchandise.

As heretofore stated, a joint motion by the defendants to set aside the jury verdict, principally on the grounds that the evidence failed to disclose any agency or employer- employee relationship between Broadcasting and McKinney, and, assuming such, that the negligent act of McKinney was without the scope of his employment, was sustained as to Broadcasting, the verdict against McKinney being allowed to stand.

This Court is aware of the great weight that is attached to the action of a trial judge in setting aside a verdict of a jury and granting a new trial to the parties. This is the 4th syllabus point of Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381: 'Though a trial court's action in setting aside a verdict for the plaintiff is entitled to peculiar weight on writ of error, a trial court's order setting aside a verdict in plaintiff's favor, nevertheless, will be reversed by this Court on writ of error, when a consideration of all the evidence clearly shows that the case was properly one for jury determination.' This Court has also held that upon a motion to set aside a verdict of a jury not only must the evidence of the prevailing party be most favorably considered, but all conflicting testimony and all inferences that may be drawn therefrom must be resolved in favor of the prevailing party. There are many decisions of this Court to that effect and the principle is so well established that it is not necessary to cite specific cases. Always it becomes a question of fact in the particular case. Upon the question of the relationship between McKinney and Broadcasting it is evident that it was either that of (a) employer-employee, (b) independent contractor, or (c) invitee. It is not seriously contended in this case that McKinney was only an invitee. However counsel for the appellee assert, and, we may assume, the trial judge agreed, that McKinney was an independent contractor. As is so often the case, we find little assistance in the prior decisions of this Court or elsewhere in determining the relationship that existed between these parties. We must therefore rely upon the evidence in this case for the answer.

It is clear that no money...