Moore v. Burriss

• Decision Date: 17 May 1949
• Docket Number: (No. 10115)
• Citation: 132 W.Va. 757
• Court: West Virginia Supreme Court
• Parties: Orville (OrvalL.) Moore v. W. H. BurrissandW. H. Burriss v. Orville (Orval L.) Moore and theCharleston Mail Association, A Corporation

132 W.Va. 757

Orville (OrvalL.) Moore

v.W. H. BurrissandW. H. Burriss

v.Orville (Orval L.) Moore and the Charleston Mail Association, A Corporation

(No. 10115)

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1949.

Decided May 17, 1949.

1. Agency

"Where the facts are undisputed, the question of agency arising therefrom should be determined by the court, and not submitted to the jury." Bank of White Sulphur Springs v. Lynch, 93 W. Va. 382.

2. Independent Contractor

In the absence of a clear showing of the exercise of the right of actual control by an employer over the work performed by an employee, a contract which provides that specified work "shall be under the exclusive control of contractor [employee]", creates the relation of employer and independent contractor.

3. Evidence

In an action to recover for personal injuries and property damages, the burden is on the plaintiff to prove, by a preponderance of the evidence, that the defendant was guilty of negligence, which was, as between the parties to such action, the sole proximate cause of the injuries and damages complained of.

4. Negligence

In an action to recover for personal injuries and property damage, where the negligence of the defendant has been established, the right of the plaintiff to recover therefor is lost where, from the evidence in the case, it appears that he was guilty of negligence, in connection with the occurrences on which the action was instituted, which proximately contributed to the injuries and damages complained of.

5. Instructions

An instruction on the doctrine of last clear chance should be given only in cases where, the bases of the doctrine being established, the evidence, to an appreciable degree, tends to show that a negligent defendant could, by the exercise of reasonable care, have avoided an accident and had failed to exercise such care.

Error from Circuit Court, Putnam County.

Separate actions by Orville (Orval L.) Moore against W. H. Burriss and by W. H. Burriss against Orville (Orval L.) Moore and the Charleston Mail Association, a corporation, for property damage and personal injuries resulting from an automobile accident. To review the judgment, W. H. Burriss brings error.

Affirmed in part;

reversed in part;

new trial awarded.

Wm. C. Battle, Bernard J. Pettigrew, Lon H. Barringer, Jr., for plaintiff in error.

Mohler, Peters & Snyder, Charles Peters, James M. Ballengee, C. E. Copen, Spilman, Thomas & Battle, R. S. Spilman, Jr., for defendants in error.

Fox, Judge:

On June 28, 1947, at a point west of Winfield, in Putnam County, and on State Route No. 17, a collision occurred between two motor vehicles owned by Moore and Burriss, respectively, one vehicle being a truck driven by Moore, and the other an automobile driven by Burriss. From this collision the drivers suffered personal injuries and both vehicles were damaged. At the time of the collision, which occurred sometime around 4:30 in the afternoon, Moore was engaged in delivering the Charleston Daily Mail to subscribers along his route, under an existing written contract, and Burriss, engaged in his own business, was returning from Charleston to his home, in Putnam County, about one and one-half miles west of the point of the collision. On October 1, 1947, Moore instituted his action against Burriss to recover damages, charging negligence on his part. This suit was instituted in the Circuit Court of Putnam County. On the day following Burriss instituted his action against Moore and the Charleston Mail Association, in the Circuit Court of Kanawha County, likewise claiming damages for alleged negligence on the part of Moore, and seeking to hold the Mail Association liable for Moore's negligence on the theory of his being its agent and servant. Under procedural rules respecting cross actions in tort promulgated by this Court on June 22, 1940, appearing on the first page of Volume 125 of the West Virginia Reports, the two actions were consolidated and ordered to be tried together in the Circuit Court of Putnam County. The two actions were so tried. In the first styled action of Moore against Burriss, the jury returned the following verdict: "We, the jury, find for the plaintiff, Orville L. Moore against the defendant, W. H. Burriss, and assess his damages at $250.00." In the action of Burriss against Moore and the Mail Association, the jury returned the following verdict: "We the jury find for the defendants." Burriss moved the court to set aside each of the said verdicts and to grant him a new trial for reasons which were assigned, and, his motion being overruled, excepted to the action of the court at the time. Judgment was entered on the said verdicts on March 12, 1948, and on November 15, 1948, at the instance of Burriss, we granted this writ of error.

The name of the plaintiff in the first case appears in the record as "Orville Moore", "Orval L. Moore" and "Orville L. Moore". The parties will be referred to herein as "Moore", "Burriss" and "Mail".

We will first take up the action of Moore against Burriss. Of course, to justify recovery by Moore, the burden of proof rests upon him to establish actionable negligence on the part of Burriss. Moore and Burriss are the two principal witnesses in the case, and Moore's case depends almost entirely upon his own statement of how the collision occurred. According to his testimony, just before the collision occurred, he had reached the end of his delivery route. He had traveled in a westerly direction, on the right hand or northern side of the highway, and had stopped at a mail box. He testified that he contemplated making a turn to the left on the highway and thereafter travel in an easterly direction along the south side of the highway. We think the evidence clearly shows that when Moore stopped at the mail box he was on the berm of the highway. The testimony shows that there was a ten foot berm on each side of the paved portion of the highway, and that such paved portion was about twenty feet and eight inches in width. Moore in his testimony, says: "Well, I delivered the papers and I looked through my mirror. I had a mirror on the outside of my car and one on the inside. Because in some cases I pulled from the road on to the berm, and the truck sits at such an angle that my outside mirror doesn't show the road, and my inside mirror does. In this case I looked at my outside mirror and did not see anything coining, and started in low gear and pulled on the road like this, and turned down. Because I pull down to here and make a circle like this, and back on the road, without having to back." He then goes on to state that he traveled along the highway, whether entirely on the berm or partly on the paved highway is not clear, for a distance of about thirty feet, and then turned towards the center of the paved highway for the purpose of making the turn referred to in the quoted portion of his testimony. He testifies that after traveling this distance of some thirty feet, and before turning towards the center of the paved highway he did not give any sign by an extension of his arm, or otherwise, indicating his intention to turn, nor did he look to see whether any other vehicle was approaching. He then drove his car onto the paved highway, and at the time of the collision his car was in a diagonal position thereon, the front being across the center line thereof, and the rear wheels being some eighteen inches from the northern edge of the paved highway. Moore's truck was struck on the left rear wheel about the center of the wheel which was on the right side of the highway considering the direction in which the Burriss automobile was traveling.

Moore testifies that after the collision, he remembered nothing, and his statement is corroborated by other witnesses who appeared on the scene shortly after the collision. Testimony as to statements made by Moore immediately after the collision are not, we think, entitled to much consideration. It is quite evident that Moore, after the collision, was dazed and confused, and his remarks while he was in that condition should be given little if any weight, because irresponsible.

Burriss, testifying as to how the collision occurred, says that he was driving westerly along the right or north side of the highway in the direction of his home; that from the point of the collision in an easterly direction there was a plain view of some twelve hundred feet, and for some five hundred feet the highway was perfectly straight; that he was traveling at a speed of from forty to forty-five miles per hour and he thinks about forty-two miles; that when he was about five hundred feet from the point of collision he saw Moore's truck on the berm to the right of the paved highway; that he saw no indication of the truck being moved until he reached a point about one hundred feet from the truck, when the red light on its rear flashed; that he instantly applied all of his brakes and blew his horn; that he was unable to stop his automobile in time to prevent a collision. He also says that there was not room for him to pass either to the right or to the left of the truck in its then position in time to avoid the collision. He further testifies that after he had applied his brakes his automobile skidded on the highway for a distance of about sixty feet, and this statement is corroborated by other witnesses who examined the highway immediately after the collision. The result of the collision was to seriously damage both Moore's truck and Burriss' automobile, and severe personal injuries were sustained by both parties. The truck was thrown to the left side of the highway and off the paved portion thereof, and the Burriss automobile landed off the highway to the right, and in the first row of a potato patch bordering thereon, a distance of approximately one hundred feet west of the point of collision.

Just before the collision, Burriss' automobile passed a truck being driven by one Carr and a man by the...