Payne v. Kinder

• Citation: 127 S.E.2d 726,147 W.Va. 352
• Decision Date: 23 October 1962
• Docket Number: No. 12163,12163
• Court: Supreme Court of West Virginia
• Parties: Lois Ann PAYNE v. William Earl KINDER.

Page 726

127 S.E.2d 726

147 W.Va. 352

Lois Ann PAYNE v. William Earl KINDER.

No. 12163.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1962.

Decided Oct. 23, 1962.

Syllabus by the Court

1. Under Rule XI of the Rules of Practice in the Supreme Court of Appeals an appellee or a defendant in error may cross-assign error which in his opinion is prejudicial to him and call attention to such error by counter assignment of error filed at the hearing of the case or by pointing out and complaining of such error in his brief; and the statute which requires a petition for appeal or writ of error to be presented within eight months after judgment, decree or order has been rendered or made does not apply to or govern the counter assignment of error in a case in which an appeal or a writ of error has been granted by this Court.

2. A trial court has wide latitude in the conduct of a trial, and particularly in matters pertaining to the examination of witnesses, and its rulings in relation to the examination of witnesses will not be reversed except when there has been a plain abuse of its discretion.

3. 'Code, 56-4-24, vests in a trial court of this State the power and discretion to permit amendments to pleadings in both law and equity, at any time before final judgment or decree, if in its opinion substantial justice will be promoted thereby, and the proposed amendment does not change the cause of action alleged in the bill or declaration intended to be amended.' Point 1, syllabus, Buffa v. Baumgartner, 133 W.Va. 758 .

4. Under a well settled rule of practice, courts of law and equity exercise great liberality in permitting amendments to pleadings, and the authority to do so exists independently of statute.

5. 'The earnings of a married woman are her separate estate, and, although she is living with her husband, she may sue alone for a personal injury and is entitled to recover for loss of time and money expended in effecting a cure, if she avers and proves that her time, or a material part of it, was spent in earning money for herself.' Point 6, syllabus, Hains v. Parkersburg, Marietta and Interurban Railway Company, 75 W.Va. 613 .

6. 'It is not an abuse of such discretion for the trial court to refuse to submit special interrogatories to a jury in a case where the issues are few and uncomplicated, and it is apparent that special verdicts would not assit the jury in arriving at a correct conclusion.' Point 2, syllabus, Lovett v. Lisagor, 100 W.Va. 154 .

7. Proof that a defendant was the owner of the motor vehicle which caused the injury resulting from the negligence of the driver of such motor vehicle creates a rebuttable presumption that the driver when the injury occurred was in the service of the owner and operated it on his account.

8. The mere presence of the owner in an automobile while it is being driven in a negligent manner by another person does not necessarily render the owner liable for injury caused by the negligence of the other person; but the presence of the owner in the automobile at the time of the injury is an important element when recovery is sought on the theory that the operator was acting as the servant or the agent of the owner or that the owner had control of the operation of the automobile.

9. The test of the liability of the owner of an automobile who is present while it is being driven by another person is whether the owner retains or relinquishes his right of control and not whether he exercises that right.

10. The distinction between the relation of bailor and bailee and the relation of master and servant depends upon the right of control.

11. Liability for the negligence of an incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate it, to a person whose incompetency, inexperience, or recklessness is known or should have been known by the owner.

12. An owner who entrusts his motor vehicle to a person whom he knows, or from the circumstances is charged with knowing, to be incompetent or unfit to drive it is liable for injury inflicted which results from the use of the automobile by the driver if the injury was proximately caused by the disqualification, incompetency, inexperience, intoxication or recklessness of the driver.

13. The violation of a statute or an ordinance is prima facie actionable negligence when it is the natural and proximate cause of an injury.

14. 'When a case has been tried and the questions of act arising in it have been submitted to a jury and a verdict has been fairly rendered, and the trial court has committed no error of law, this Court will not disturb the verdict unless manifest wrong or injury has been done or it clearly appears that the verdict is contrary to the weight of the evidence or that it is without any evidence to support it.' Point 11, syllabus Thrasher v. Amere Gas Utilities Company, 138 W.Va. 166 .

15. Statutes which declare beer containing not more than a specified alcoholic content to be nonintoxicating are generally considered as having been adopted merely for the purpose of regulating and controlling its sale and of facilitating the enforcement of the license tax imposed.

16. The question whether the driver of an automobile of a defendant was under the influence of intoxicating liquor by reason of his consumption of beer declared by statute to be nonintoxicating depends upon and is determined by the evidence and is not controlled by the legislative declaration that such beer is nonintoxicating.

17. Refusal to give an abstract instruction is not reversible error.

18. Instructions must be based upon the evidence and an instruction which is not sustained by evidence should not be given.

19. An instruction which tends to mislead the jury is erroneous and should be refused.

Alexander & Bailey, Arch J. Alexander, Jr., Gene W. Bailey, Marmet, Chauncey H. Browning, Jr., Charleston, for plaintiff in error.

Palmer & McCutcheon, J. Campbell Palmer, III, Charleston, for defendant in error.

HAYMOND, Judge.

In this action of trespass on the case instituted in the Court of Common Pleas of Kanawha County the plaintiff, Lois Ann Payne, a married woman, seeks to recover from the defendant, William Earl Kinder, damages for personal injuries which the plaintiff alleges were caused by the negligence of the defendant. The injuries of which the plaintiff complains were sustained in a collision between an automobile owned and driven by the husband of the plaintiff in which she was riding as a guest and an automobile owned and occupied by the defendant and driven by an unidentified person who had been permitted by the defendant to operate his automobile. The collision occurred about six thirty o'clock in the evening of May 16, 1959, on U. S. Route No. 119, in Kanawha County.

Upon the trial of the action the jury, on March 30, 1960, returned a verdict in favor of the plaintiff for $5,000.00. On October 19, 1960, the trial court overruled the motion of the defendant to set aside the verdict and grant him a new trial and rendered judgment in favor of the plaintiff for the amount of the verdict with interest and costs. Upon writ of error the Circuit Court of Kanawha County, by judgment rendered September 28, 1961, reversed the judgment of the court of common pleas of October 19, 1960, and remanded the case to that court for a new trial. To that judgment of the circuit court this Court granted this writ of error and supersedeas upon the application of the plaintiff.

Before the collision in which the plaintiff sustained the injuries of which she complains, the defendant had been several times arrested for drunkenness and at the time of the collision his driver's license had been revoked. In that situation he could not lawfully operate his automobile and in the afternoon of the day of the collision his wife accompanied by the defendant drove his automobile to a section of the City of Charleston. After parking the automobile, she went to the shopping district of the city for the purpose of making some desired purchases.

The defendant went from the parked automobile to a nearby beer parlor or cafe known as the Pastime on Kanawha Boulevard where he drank five to seven bottles of beer and met two men, whom he had not previously known, who were also drinking beer at that place. During a conversation with them he told them that his driver's license had been revoked and that he could not drive his automobile. They requested him to permit them to drive his automobile to Boone County to see the sister of the taller of the two strangers. They told him that they would purchase gasoline and return the defendant to his father's home on Park Avenue in Charleston. He consented and told them that he would go with them. The two men and the defendant then entered the front seat of the automobile.

The defendant occupied the space between the two strangers and the taller of the two strangers became the driver. They went to a liquor store on Tennessee Avenue where one of the strangers purchased two bottles of vodka and returned with them to the automobile. From that place they proceeded to a restaurant known as the Gold Dome where the strangers purchased two bottles of 'Seven Up' for use in drinking the vodka. One of the bottles of vodka was placed in the glove compartment of the automobile and the defendant opened and took seven or eight drinks from the other bottle while riding in the automobile. It does not clearly appear that either of the strangers drank any of the vodka from that bottle, although when the automobile was examined the next day after the collision one of the bottles remained in the glove compartment and the bottle from which the defendant had drunk vodka was missing. According to the defendant he did not drink all of the contents of that bottle.

After leaving the Gold Dome restaurant the...