Musgrove v. Hickory Inn, Inc., No. 14470

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation168 W.Va. 65,281 S.E.2d 499
Decision Date08 September 1981
Docket NumberNo. 14470
PartiesJohn Robert MUSGROVE v. The HICKORY INN, INC., et al.

Page 499

281 S.E.2d 499
168 W.Va. 65
John Robert MUSGROVE
v.
The HICKORY INN, INC., et al.
No. 14470.
Supreme Court of Appeals of West Virginia.
Sept. 8, 1981.

Syllabus by the Court

1. Under Rule 9(a), West Virginia Rules of Civil Procedure, it is not necessary to aver the capacity of a party to sue or be sued.

Page 500

2. Rule 9(a), West Virginia Rules of Civil Procedure, requires that if an issue of capacity is to be raised by a party, it be done by specific negative averment.

3. An agent or employee can be held personally liable for his own torts against third parties and this personal liability is independent of his agency or employee relationship. Of course, if he is acting within the scope of his employment, then his principal or employer may also be held liable.

[168 W.Va. 66] Brent E. Beveridge and Susan K. McLaughlin, Fairmont, for appellant.

No appearance for appellee.

MILLER, Justice:

Plaintiff, John Robert Musgrove, appeals from an order of the Circuit Court of Taylor County dismissing his civil action in which he sought damages against Hickory Inn, Inc., and two of its alleged employees, Tom and Betty Bradley, for injuries received from an assault allegedly committed by them. Plaintiff contends that the circuit court erred in dismissing the action. We agree and reverse the decision of the circuit court.

In his complaint, the plaintiff alleged that on the evening of December 5, 1975, while he was a customer at the Hickory Inn, Inc., a corporation, the defendants Tom Bradley and Betty Bradley, "acting as agents, employees and/or officers of the Hickory Inn, Inc., without justification or adequate provocation, maliciously and wilfully committed an assault ... by striking (him) about the head, shoulders, back and other parts of his body with the butt of a gun and a baseball bat." Plaintiff sought both compensatory and punitive damages.

After the filing of the complaint, the defendants moved to dismiss "because there is no such corporation in the State of West Virginia doing business as 'The Hickory Inn, Inc.,' ... and the complaint alleges Tom Bradley and Betty Bradley were ... 'acting as agents, employees and/or officers of The Hickory Inn, Inc.' " This motion was argued before the circuit court on January 5, 1978. At the same time, the plaintiff submitted a memorandum in opposition to the motion to dismiss and an amended complaint which deleted the references to the corporation as well as the defendants Bradleys' capacity as agents or employees of the corporation. On March 16, 1978, the trial [168 W.Va. 67] court dismissed the action finding that "there is no such corporation as the Hickory Inn, Inc.," and "the complaint fails to state that the Bradleys were acting as individuals but in fact states they were acting as agents ... of the Hickory Inn, Inc...." Plaintiff contends that the circuit court erred in dismissing his suit against the Bradleys. The dismissal of the Hickory Inn, Inc., is not challenged.

Plaintiff relies on Rule 9(a) of the West Virginia Rules of Civil Procedure (RCP), which basically provides that it is not necessary to aver the capacity of a party. 1 In Employers Fire Insurance Company v. Biser, W.Va., 242 S.E.2d 708 (1978), we specifically recognized the principles embodied in Rule 9(a):

"Rule 9(a), R.C.P., provides that 'It is not necessary to aver the capacity of a party to sue or be sued ...' That rule further provides that if capacity to sue is questioned, it must be done by 'specific negative averment.' No such specific negative averment having been made by the defendant, the court's dismissal on this ground was reversible error." 242 S.E.2d at 711.

In Biser, two insurance companies had paid for fire damage to the...

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39 practice notes
  • Woodrum v. Johnson, No. 28857.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...or against each of them in a separate action at law. Syl. pt. 8, in part, Bumgarner, supra; see also Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 68, 281 S.E.2d 499, 501 (1981); Muldoon v. Kepner, 141 W.Va. 577, 583-84, 91 S.E.2d 727, 731 In O'Dell v. Universal Credit Co., 118 W.Va. 678, 19......
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...strict or absolute liability despite the absence of fault.(Emphasis added).6 In Syllabus Point 3 of Musgrove v. Hickory Inn, Inc. , 168 W. Va. 65, 281 S.E.2d 499 (1981), we offered the following rule for respondeat superior :An agent or employee can be held personally liable for his own tor......
  • Harless v. First Nat. Bank in Fairmont, Nos. 15088
    • United States
    • Supreme Court of West Virginia
    • March 23, 1982
    ...scope of his employment, then his principal or employer may also be held liable." Syllabus Point 3, Musgrove v. Hickory Inn, Inc., W.Va., 281 S.E.2d 499 3. The tort of retaliatory discharge carries with it a sufficient indicia of intent, thus, damages for emotional distress may be recovered......
  • Westfield Ins. Co. v. Paugh, No. Civ.A. 3:03CV43.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 29, 2005
    ...Paxton v. Crabtree, 184 W.Va. 237, 245 n. 8, 400 S.E.2d 245, 253 n. 8 (1990) (citing Syllabus Point 3, Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 281 S.E.2d 499 (1981)). Here, the Paughs have not alleged a tort action against Westfield or Dailey on the coverage issue. Instead, the issue i......
  • Request a trial to view additional results
39 cases
  • Woodrum v. Johnson, No. 28857.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...or against each of them in a separate action at law. Syl. pt. 8, in part, Bumgarner, supra; see also Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 68, 281 S.E.2d 499, 501 (1981); Muldoon v. Kepner, 141 W.Va. 577, 583-84, 91 S.E.2d 727, 731 In O'Dell v. Universal Credit Co., 118 W.Va. 678, 19......
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...strict or absolute liability despite the absence of fault.(Emphasis added).6 In Syllabus Point 3 of Musgrove v. Hickory Inn, Inc. , 168 W. Va. 65, 281 S.E.2d 499 (1981), we offered the following rule for respondeat superior :An agent or employee can be held personally liable for his own tor......
  • Harless v. First Nat. Bank in Fairmont, Nos. 15088
    • United States
    • Supreme Court of West Virginia
    • March 23, 1982
    ...scope of his employment, then his principal or employer may also be held liable." Syllabus Point 3, Musgrove v. Hickory Inn, Inc., W.Va., 281 S.E.2d 499 3. The tort of retaliatory discharge carries with it a sufficient indicia of intent, thus, damages for emotional distress may be recovered......
  • Westfield Ins. Co. v. Paugh, No. Civ.A. 3:03CV43.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 29, 2005
    ...Paxton v. Crabtree, 184 W.Va. 237, 245 n. 8, 400 S.E.2d 245, 253 n. 8 (1990) (citing Syllabus Point 3, Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 281 S.E.2d 499 (1981)). Here, the Paughs have not alleged a tort action against Westfield or Dailey on the coverage issue. Instead, the issue i......
  • Request a trial to view additional results

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