Mowery v. Hitt

• Decision Date: 25 May 1971
• Docket Number: No. 12978,12978
• Citation: 181 S.E.2d 334,155 W.Va. 103
• Court: West Virginia Supreme Court
• Parties: Velma Irene MOWERY v. Russel HITT et al.

Page 334

181 S.E.2d 334

155 W.Va. 103

Velma Irene MOWERY v. Russel HITT et al.

No. 12978.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1971.

Decided May 25, 1971.

Syllabus by the Court

1. In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.

2. Upon an appeal to this Court from a judgment of a circuit court entered in a civil action, if it appears that certain questions were properly presented for decision but not considered or decided by the trial court, this Court may reverse the judgment of the trial court and remand the case to that court for decision of the questions thus properly presented for decision but not decided.

Louis G. Craig, Alice B. Vance, Weston, for appellant.

Gerald H. Brooks, Weston, for Jimmy Louis Smith.

CALHOUN, Judge:

This case, on appeal from a final judgment order entered on November 25, 1969, by the Circuit Court of Lewis County, involves a certain aspect of a civil action for wrongful death instituted in that court by Velma Irene Mowery, in her own right and as administratrix of the estate of her deceased daughter, Connie Sue Mowery, against Russel Hitt, Jimmy Louis Smith, Clarence Edward Smith and Margaret Smith, as defendants.

The case was submitted for decision in this Court upon the record made in the trial court, upon the brief of counsel for the plaintiff and the brief of counse for defendant Jimmy Louis Smith, the sole appellee, oral argument having been waived by agreement of counsel. In view of the fact that, pursuant to the provisions of Rule IV of the Rules of this Court, only a portion of the record has been printed, the fact that oral argument was waived and in view of the fact that the final judgment order does not state precisely the basis of or reasons for the judgment from which the plaintiff has been granted the appeal, the Court has deemed it wise and helpful, pursuant to the provisions of Section 10 of Rule IV of this Court, to consult the original record filed in the office of the clerk of this Court in order properly to present the facts which form the basis of the questions presented for decision.

The complaint alleges that, on August 14, 1967, in the City of Weston, Lewis County, West Virginia, Jimmy Louis Smith, an infant, negligently drove an automobile belonging to Russel Hitt in such a manner that the automobile left a city street and struck Connie Sue Mowery, who was then on a sidewalk, and that, as a consequence thereof, she sustained personal injuries which resulted in her death on that day.

The cause of action alleged against Jimmy Louis Smith is based on his negligence in the operation of the automobile.

The alleged liability of Russel Hitt is based upon allegations that Jimmy Louis Smith was operating the automobile as the agent of Hitt; that Hitt and the infant driver of the automobile, at the time of the accident, had 'entered into and upon some certain joint adventure and enterprise', as a consequence of which the automobile was driven by the infant defendant to the scene of the accident; that Jimmy Louis Smith 'carelessly and negligently and without an operator's license,' drove Hitt's automobile on the occasion in question; and that Hitt, 'by and through his agent Jimmy Louis Smith who was driving negligently and illegally and without being licensed to operate a motor vehicle, contrary to the laws of the State of West Virginia, knowingly allowed his agent Jimmy Louis Smith to drive an automobile owned by him * * *.'

The basis of liability of defendants Clarence Edward Smith and Margaret Smith is not clearly alleged, though the complaint alleges that they were parents of the infant driver. The question of the liability of the two parents is not involved on this appeal.

As to the claim asserted by the plaintiff in her own right, the complaint alleges that she, as the mother of the decedent, has sustained financial and pecuniary loss to the extent of $15,000 'in addition to the mental anguish, grief and sorrow.'

The primary question presented for decision on this appeal is whether the trial court erred in dismissing the action as to Jimmy Louis Smith on the ground of a lack of proper service of process upon him.

Russel Hitt, the owner of the automobile, was personally served with process within Lewis County by the sheriff of that county. He filed an answer to the complaint by which he denied all allegations of negligence charged against him in the complaint. An order entered by the trial court on December 12, 1969, recites that, upon motion of counsel for the plaintiff, the civil action is ordered to proceed against Russel Hitt, notwithstanding the fact that, by a prior order, the action was dismissed by the trial court as to all other defendants. So far as the record discloses, the action is still pending as to defendant Russel Hitt.

On April 24, 1969, the wrongful death action was instituted by the filing of the complaint and the issuance of process. At the same time, an affidavit of the plaintiff was filed in compliance with the requirements of R.C.P. 4(f) pertaining to personal service of process outside this state upon persons who are residents of this state. The affidavit states that, to the best of the affiant's information and belief, Jimmy Louis Smith and his parents were residents of the City of Weston, West Virginia. The return of service in relation to the three Smith defendants was made by a deputy sheriff of Lorain County, Ohio. An affidavit of the deputy sheriff states that service of a copy of the summons and complaint was made upon Jimmy Louis Smith within Lorain County 'by leaving a true copy thereof at his usual place of residence with Margaret Smith, a member of his family over the age of 16 years, and by personally serving Margaret Smith, mother, as person having custody of Jimmy Louis Smith.'

Counsel for the three Smith defendants filed a written motion to dismiss the action as to them on the ground that these defendants had not been properly and lawfully served with process. The written motion stated that the defendants were nonresidents of the State of West Virginia; and that the substituted service attempted upon Jimmy Louis Smith was incomplete, improper and void because the return of service was defective for various reasons enumerated in the written motion. Upon the motion of counsel for the plaintiff, the hearing upon the motion to dismiss which was scheduled to be held on May 23, 1969, was continued until June 2, 1969. No objection to the continuance was made by counsel for the defendants.

On May 30, 1969, an additional summons was issued and served upon the defendant, Jimmy Louis Smith, in the State of West Virginia. The return of service made by the deputy sheriff of Lewis County states the following: 'Served the within summons and complaint on the within named Jimmy Louis Smith by delivering a copy of said summons and complaint to him in person in Lewis County, West Virginia, on the 30th day of May, 1969.' The summons was dated April 24, 1969, the date the original summons was issued. On the same date of the personal service upon Jimmy Louis Smith, a summons and a copy of the complaint were served upon Clarence Edward Smith, the father of Jimmy...