Miller v. Douglas
| Decision Date | 21 November 1939 |
| Docket Number | 8878-8880. |
| Citation | 5 S.E.2d 799,121 W.Va. 638 |
| Parties | MILLER v. DOUGLAS et al. (two cases). |
| Court | West Virginia Supreme Court |
Waugh & Waugh, of Buckhannon, for plaintiff in error T. A. Darnall.
Myron B. Hymes, of Buckhannon, and Steptoe & Johnson and Oscar J. Andre, all of Clarksburg, for plaintiff in error B. F Whitescarver.
Lycurgus Hyre and A. Jerome Dailey, both of Buckhannon, for defendant in error.
FOX President.
Herbert Miller, plaintiff below and defendant in error in this court suffered serious injuries on January 29, 1937, when he was struck by an automobile driven by Dana Douglas. He instituted his suit in the circuit court of Upshur County, seeking recovery for said injuries from Dana Douglas, driver of the automobile which struck him, T. A. Darnall, the owner of said automobile, doing business under the name of Eck Darnall Garage, and B. F. Whitescarver, doing business in the name of Whitescarver Funeral Home, and on trial of the action the jury found a verdict in his favor against all of the defendants for the sum of $5,183.33, on which judgment was entered by the trial court. Various motions were made by counsel for the defendants, Darnall and Whitescarver, during the trial of the case and exceptions duly taken to such motions as were overruled and there were separate motions by the plaintiffs in error to set aside the verdict of the jury, which were overruled. The defendants, Darnall and Whitescarver, applied for and secured separate writs of error to the said judgment, which were heard together in this court by reason of the fact that the claims against the said two defendants grew out of the identical accident and injury mentioned above. The said judgment, as against the defendant, Dana Douglas, has not been attacked.
Miller would sustain his judgment as against Darnall on the ground that Darnall was the owner of the automobile driven by Douglas, and that the accident causing his injury was in part due to defective brakes on said automobile; that at the time of the accident, Douglas was operating the automobile under authority given him therefor by one McCauley, an employee of Darnall and his alleged agent. The claim for recovery against Darnall is somewhat vague as to the basis on which it is sought. One theory seems to be that Darnall, through his employee and agent, McCauley, was the bailor of the said automobile; the other that the automobile was being driven by Douglas with the idea of testing the same in contemplation of its purchase from Darnall, who was a dealer in automobiles, and was therefore used in furtherance of Darnall's business.
Recovery against Whitescarver is sought on the allegation that he was negligent in ordering Miller to stop the hearse at the point of the accident and directing him to there put chains on the hearse preparatory to travelling over a muddy road, thereby placing the employee, Miller, in a place unsafe for work within the knowledge of Whitescarver, and where he was injured shortly afterward by the concurring negligence of the other defendants.
There is little dispute as to the facts of the case. Whitescarver operated an undertaking establishment in Buckhannon. On the day before the injury, the plaintiff, Miller, had driven Whitescarver's hearse from Buckhannon along Route 20 to Rock Cave in Upshur County, a distance of about sixteen miles, and from that point for a short distance on Route 35 which at that time was a stone base road, and then over a dirt road for two and one-half miles, transporting the body of a deceased girl to her home, preparatory to her funeral on the day following. On this occasion, he stopped near the intersection of Route 20 and Route 35 at Rock Cave, on the stone base road, and put on chains, and witness Rundio, who was with him on that occas ion, says that Miller said, in effect, that he would not select such a place in the future to put on chains. On the next day, Whitescarver, Rundio and Miller left Buckhannon and drove the hearse on Route 20 to a point about two hundred and fifty feet north of the intersection of Routes 20 and 35 at Rock Cave, at which point the hearse was stopped for the purpose of putting on chains. There is a conflict of testimony as to the circumstances under which the hearse was stopped. Miller, who was driving, says that it was stopped at the direction of Whitescarver, the owner; while both Whitescarver and Rundio say that Miller stopped the car without any direction from either of them. Miller and Rundio alighted from the hearse, and Miller proceeded to put the chains on the vehicle, while Rundio crossed the highway for the purpose, he says, of looking out for and directing traffic. The hearse was stopped on the right side of the paved portion of the highway, the right wheels being within about six inches of the outer edge, leaving more than one-half of the pavement available for passing traffic. At the point where the hearse was stopped, there was a view of some five hundred feet back in the direction of Buckhannon; a view of some four hundred feet along Route 20 in the direction of Webster Springs; and a view of from one thousand to fifteen hundred feet along Route 20 and Route 35 which was then the stone base road. Miller continued with his work, and shortly before his injury was facing south, or in the direction of Webster Springs, working at the left rear wheel, and while in that position saw a car coming from that direction, and at the same time the car owned by Darnall and driven by Douglas was approaching from the north, or from Buckhannon. Rundio saw these two cars approaching and apparently feared for Miller's safety and warned him, at which Miller undertook to escape from danger, and in doing so, went around the rear end of the hearse, endeavored to pass over the berm at the right of the road and was struck by the car driven by Douglas. Douglas saw the hearse parked on the side of the paved portion of the road, and when within about three hundred and fifty feet thereof, saw the automobile approaching from the south, whereupon he attempted to apply his brakes and discovered that they would not take hold, with the result that he could not stop the automobile, and in an effort to escape striking the on-coming automobile or the rear end of the hearse, he veered to the right and struck Miller. Douglas says that had his brakes been effective, he could have stopped the automobile and avoided the accident. An examination of the automobile, by a state policeman shortly after the accident, revealed that the foot brake pedal "just dropped down to the floor board without any pressure on it at all", and that there was no emergency or hand brake. It appears to be very clear that but for the defective brakes on the...
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