Miles v. Rose

• Decision Date: 14 June 1934
• Citation: 175 S.E. 230
• Court: Virginia Supreme Court
• Parties: MILES. v. ROSE. SAME. v. HODGES.

175 S.E. 230

MILES.

v.ROSE.

SAME.

v.HODGES.

Supreme Court of Appeals of Virginia.

June 14, 1934.

Error to Corporation Court of City of Hopewell.

Separate actions for trespass on the case by Franklin H. Rose and Harold Hodges against R. L. Miles, Jr., and others, which were tried together. Judgments for plaintiffs, and the named defendant brings error.

Reversed and remanded.

Argued before CAMPBELL,, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

W. R. Ashburn, of Norfolk, for appellant.

K. L. Woody and Archer L. Jones, both of Hopewell, for appellee.

EPES, Justice.

These two cases are actions of trespass on the case instituted in the corporation court of the city of Hopewell. In one of them Franklin H. Rose is the plaintiff and in the other Harold Hodges is the plaintiff. The same persons were defendants in both cases. They both arose out of a collision between two automobiles which occurred on August 31, 1930, in the intersection of Arctic avenue and Nineteenth street in the town of Virginia Beach, in Princess Anne county, Va.

The following undisputed facts appear from the evidence: Arctic avenue runs north and south; Nineteenth street runs east and west; and the angles made by the paved portions of the two streets are practically right angles. The paved portion of each street is sixteen feet wide, and the collision occurred in the northwest quarter of the area lying within the intersection made by the paved portions of them.

The car in or on which the plaintiffs were riding was a model A Ford roadster, which was owned by, and being driven by, T. E. Denton. It was going west on Nineteenth street. The other car was being driven by R. L. Miles, Jr., who was and is a resident of the city of Norfolk. It was going south on Arctic avenue.

Bushes and weeds from eight to ten feet high were growing in the northeast angle made by the intersection of the paved portions of the streets. All the witnesses agreed that these bushes and weeds constituted an obstruction to the view of a person in either car. The plaintiffs testified that they shut off their view of Arctic avenue to the north of the intersection until they were within twenty feet of the intersection. Miles testified that they cut off his view to the east along Nineteenth street until he was almost in the intersection.

The automobile driven by Miles belonged to J. S. Barr of Philadelphia, Pa., who was spending the Labor Day holiday with Miles in Norfolk. Early in the afternoon Barr and Miles had driven from Norfolk to Virginia Beach in Barr's car. Later in the afternoon Miles, with Barr's consent, took the automobile to take a Miss Griffith for a drive, and at the time of the collision she and Miles were the only persons in the automobile.

Five persons were riding in and on the Denton car. Denton was seated on the left driving. James E. Cuddihy (age 19) and Harold Hodges (age 17) were sitting on the seat with him, Cuddihy in the middle and Hodges on the right. Franklin H. Rose (age 20) was standing on the right running board and Walter Mathlas was standing on the left running board. There is, however, no evidence which tends to show that the fact that the number of persons in the car or their respective positions in or on it was a proximate cause of the collision or of the injuries received by either Rose or Hodges.

Denton, Rose, Hodges, and Cuddihy resided in the city of Hopewell at the time of the collision and when these actions were brought. They were friends, or at least acquaintances, who were spending the Labor Day holiday at a tourist camp at Virginia Beach. About 5 p. m. these four left the tourist camp in Denton's automobile to go to get some whisky for the use of themselves and some of their friends, or, as one of them testified, "to take on a party." Throughout this trip Denton did all the driving. They went first to the bath house for Denton and Hodges to change from their bathing suits to their ordinary clothes. From there they went to a filling station to inquire where they could get whisky. At the filling station they met Mathias, who agreed to go with them and show them where it could be acquired. After Mathias joined them they drove about two miles into the country, where they purchased a gallon jug of whisky. They were on their way back to camp with the whisky in the car when the collision occurred. While it is not expressly so stated by any of the witnesses, the fair inference from the testimony is that Denton, Rose, Hodges, and Cuddihy were all interested in, and contributed to, the purchase of the whisky. But the testimony is that they had not drunk any of the whisky; and there is no testimony in the record to show that either they, Denton, or Miles had taken a drink that day.

Rose and Hodges were seriously injured in the collision. Miles received a blow on his head from which he was in the hospital 8 days; and Miss Griffith and Mathias suffered minor injuries. The record does not show whether Denton was injured or not.

Rose had his left leg fractured about six inches above the ankle and his right leg fractured and crushed from about six inches above the ankle down to and including the upper part of the ankle joint. His left hand was badly lacerated. He had a severe laceration about the right eye, and was knocked unconscious. At the time of the trial his legs were still weak, ached in rainy weather, and, if overtaxed, they swelled up and made him limp. One kneejoint was still so much affected by the injury to the lower part of the leg that, if any strain was placed upon it, it slipped out of joint. He was in the hospital nine weeks, during which time his hospital bill was $6 a day (a total of $378), in addition to charges for X-ray and other expenses; and his doctor's bill was $300. His father paid the hospital expenses and a part of the doctor's bill. A part of the doctor's bill remained unpaid at the time of the trial, but the record does not show how much.

Hodges had his skull fractured, his right leg broken above the knee, and his right ankle fractured, and was unconscious for 2 weeks after the accident. At the time of the trial he was still suffering from "very severe headaches sometimes from the fracture of my skull, " had "a limp in" his right leg, and suffered with his leg "very much." He was in the hospital about 9 weeks. His hospital and nursing bills amounted to about $600, and his doctor's bills to $375. His father paid "the hospital bill and a part of the doctor's bill"; but the record does not show how much was left unpaid.

On August 21, 1931, almost a year after the collision, Rose and Hodges, each suing by his father as his next friend, filed their separate actions in the clerk's office of the corporation court of the city of Hopewell. The memorandum in both actions directed the issuance of process in an action of trespass on the case against T. E. Denton, R. L. Miles, R. L. Miles, Jr., and J. S. Barr, for $10,000 damages.

On the same day two subpœnas, addressed to the sergeant of the city of Hopewell, issued in each action against all four defendants. One of them was sent to the sergeant of the city of Norfolk and was served in that city upon R. L. Miles on August 26 and on R. L. Miles, Jr., on August 27, 1931. The other was delivered to the sergeant of the city of Hopewell, and on August 28, 1931, was servedupon T. E. Denton in that city. No service was had, or, so far as the record discloses, was attempted to be had, on Barr.

The declarations filed in the two causes are practically identical except as to the name of the plaintiff and the allegations as to the injuries received by him. Though each declaration begins the plaintiff "complains of T. E. Denton, R. L. Miles, R. L. Miles, Jr. and J. S. Barr, of a plea of trespass on the case, for this, to-wit, " neither alleges, or purports to allege, any cause of action against R. L. Miles, and before the jury was sworn the cases were dismissed as to him.

Each declaration contains only one count. The allegations of that count are that J. S. Barr and R. L. Miles, Jr., were the owners of, and were operating, an automobile which was going south on Arctic avenue; that T. E. Denton was the owner and operator of an automobile going west on Nineteenth street; that "the said defendants, and each of them * * * so carelessly, recklessly and negligently drove and operated their said automobiles that the automobile * * * being driven and operated by the said J. S. Barr and R. L. Miles, Jr., and the automobile * * * driven and operated by the said T. E. Denton * * * collided with each other"; and that "as a direct and proximate result of the * * * negligence of the said defendants, and each of them, " the plaintiff was injured.

Denton made no appearance, filed no pleadings, was not present at the trial, and no testimony given by him was introduced in evidence.

The defendant, R. L. Miles, Jr., appeared in each case, demurred to the declaration, asked that the plaintiff be required to file a bill of particulars, and pleaded the general issue, that the plaintiff was guilty of contributory negligence, in that he himself was guilty of negligence which contributed to causing the collision, and in "that he was engaged in a joint enterprise with the driver of said car (Denton) and assumed equal responsibility so that the driver's negligence is imputable to him." In his plea of contributory negligence he inferentially pleads that Denton was guilty of negligence which contributed to causing the collision, though he dors not expressly so allege.

While it is not entirely clear whether the court and counsel understood that the case was being tried as to both Denton and Miles or only as to Miles, upon a consideration of the whole record we are of opinion that it is properly considered as having been tried only as to Miles, and that this was done without objection from him.¹

By consent of the plaintiffs and Miles both cases were submitted to the same jury, on the same evidence and upon...