Stone v. Rudolph

Citation127 W.Va. 335
Decision Date12 December 1944
Docket Number(No. 9574),(No. 9573)
CourtWest Virginia Supreme Court
PartiesWilliam H. Stone v. Vernon Rudolph, etc.andWilliam H. Stone v. Vernon Rudolph, etc.

1. Appearance

An appearance in a suit or action for any purpose other than to question the jurisdiction of the court, or to set up lack of process, or defective service thereof, is a general appearance.

2. Appearance

An alleged defect in the service of process, raised by a motion to quash a return of service thereof, is waived by a subsequent general appearance in a suit or action.

3. Army and Navy

On a motion to delay the trial of an action at law, inter- posed by a litigant who claims to be engaged in the military service of the United States, under the provisions of the Federal Soldiers' and Sailors' Civil Relief Act, the reasonable exercise of the discretion of a trial court in determining whether "the ability of the plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service" will not be disturbed.

4. Automobiles-

A servant of the owner of an automobile, who in disobedience of his master's instruction not to transport invitee or guest passengers, is, nevertheless, liable to such invitee or guest passenger for personal injuries sustained by him, due solely to lack of reasonable care by the servant in the operation of such automobile.

5. Automobiles-

A master who entrusts to his servant an automobile with instructions not to transport therein invitee or guest passengers, is not liable to such a passenger, who in violation of such instructions is permitted to ride in such automobile, for injuries sustained by him resulting therefrom, unless it be shown that the conduct of the servant bringing about such injuries was wanton and wilful.

6. Automobiles-

In a negligence action, growing out of the operation of an automobile, the defense of contributory negligence or assumption of risk on the part of a plaintiff is not available to a defendant who is guilty of wanton and wilful conduct, which operates to injure the plaintiff.

7. Appeal and Error-

A joint judgment based on a jury verdict against two defendants may be reversed by this Court as to one, and affirmed as to the other; and the verdict of the jury set aside and a new trial awarded as to the party securing a reversal of the judgment.

Error from Circuit Court, Fayette County.

Action of trespass on the case by William H. Stone against Vernon Rudolph, trading and doing business as Krispy Kreme Doughnut Company, and against Holly Hopkins to recover for injuries sustained in a collision between automobile, owned by defendant Rudolph and operated by defendant Hopkins, in which plaintiff was a guest-passenger, and a parked truck. Judgment for plaintiff, and defendants bring error.

Affirmed as to Holly Hopkins; judgment reversed as to Vernon Rudolph; verdict set aside; new trial awarded.

Kenna and Lovtns, Judges, dissenting.

Fletcher W. Mann and Hutchins & Parker, for plaintiffs in error.

Frank Love and William L. Lee, for defendant in error. Fox, Judge:

William H. Stone instituted his action of trespass on the case against Vernon Rudolph, trading and doing business as Krispy Kreme Doughnut Company (hereinafter referred to as "Rudolph") and Holly Hopkins, in the Circuit Court of Fayette County, in which he seeks to recover $25,000.00 damages for personal injuries sustained by him, growing out of a collision between an automobile owned by Rudolph and operated by his employee, Hopkins, and in which plaintiff was a guest-passenger, and a truck parked on the state highway in the Town of Oak Hill in Fayette County, referred to in the record as the "Georgia truck". Plaintiff, in his original declaration, alleges that said collision was brought about by the "careless, reckless and negligent conduct" of defendants in the operation of their automobile; and in his amended declaration, in the second count thereof, that the conduct of Hopkins, under the circumstances alleged, "was gross, wanton and wilfull negligence". There was a trial of the action before a jury, which resulted in a verdict for the plaintiff, and against both defendants, for the sum of $16,000.00, on which, after a motion to set aside had been overruled, the court entered a joint judgment against the defendants, to which action the defendants prosecute separate writs of error, and the matters arising thereon are heard together in this Court.

Two matters, not bearing upon the merits of the case, need to be considered at this point. The first is the objection raised to the service of process on Rudolph. The cause of action arose in Fayette County, and Hopkins was served with process in that county. At the date of the institution of the action, Rudolph was a nonresident of this State, and plaintiff attempted to secure service of process on him under the provisions of Chapter 47, Acts of the Legislature, 1937, (Michie's Code, 1943, 56-3-31) which in general provides for service upon the auditor of the State in cases where a nonresident operates an automobile in this State. The requirements of the section referred to seem to have been complied with, unless it be that part thereof which requires that notice of such service on the auditor, and a copy of the process, shall be forwarded by the auditor to the defendant by registered mail, and the production of the defendant's return receipt, signed by him or his duly authorized agent, or a showing of the refusal of such registered mail by the addressee, and the return thereof to the auditor's office showing such fact, all of which is required to be appended to the original process, and filed therewith in the clerk's office of the court from which process issued. The facts are that process served on the auditor, or more accurately expressed, accepted by him, was forwarded by registered mail to Vernon Rudolph, Krispy Kreme, in Charleston, West Virginia, and receipted for by one Mary Lou Gregory, who was the wife of Rudolph's manager in the business being conducted by him in Charleston. It is contended that this was not a compliance with the statute, because process was mailed to a point within this State, and that the service of process as to Rudolph is defective. The question was raised, through a special appearance, by motion to quash the return of service, which motion was overruled, and the service held effective. The orders bearing on this point show that on April 26, 1943, Vernon Rudolph, by his attorney, appeared specially and for no other purpose than to renew a motion made at the January term, 1943, to quash the service of process and return thereof as to him, and that the court refused to quash the service and return, to which Rudolph excepted. The order entered on that day then shows that Rudolph "appeared generally and tendered and asked leave to file an affidavit purporting to show that he is in the military service of the United States." However, at a later date, and at the same term, this order was amended by striking out the word "generally" and substituting the word "specially". We do not think that we are called upon to decide the question whether there was, in the first instance, a valid service of process on Rudolph, because we consider that the subsequent acts of Rudolph and his counsel constituted general appearance. The order entered on April 26, 1943, shows that he appeared generally in the action by pleading the general issue therein, and we do not think the subsequent order which amended that order and substituted the word "specially" for the word "generally" had any effect to change the character of the appearances that were made. It is well settled and no authority is needed for the proposition, that an appearance in a suit or action for any purpose other than one to test the jurisdiction of the court, or the sufficiency and service of a process, is a general appearance. The filing of an affidavit bearing on the contention that defendant was at that time engaged in the military service of the United States, was certainly not an appearance having anything to do with the jurisdiction of the court to try the action, or one having any bearing whatever on the legality of the service. In addition to this, the case was tried on the part of both defendants, and counsel appeared for each of them. This, we think, was a waiver of any defect in the service of the process. See State v. Thacker Coal & Coke Co., 49 W. Va. 140, 38 S. E. 539; Dararon v. Williamson Construction & Engineering Co., 109 W. Va. 122, 153 S. E. 250; 1 Michie's Virginia and West Virginia Digest 583. See also C. & O. R. R. Co. v. Wright, 50 W. Va. 653, 655, 41 S. E. 147. This was a case in which an appearance before a justice of the peace was considered. It may not be strictly applicable to an action in the circuit court, but there is a discussion of the principle involved. The case of Chapman v. Maitland, 22 W. Va. 329, may seem to be in conflict with the decisions cited above, but whatever the rule may have been at one time, we think it clear that, as the law now is, a general appearance after a plea or motion attacking the form of, or the return of service of process waives any defect in the process or the service thereof, on the general theory that the office of a process is to bring a defendant into court and give him notice of the proceeding; and while he may appear specially to attack the form of return of service thereof, he cannot afterwards appear generally for any purpose without a waiver of his objections thereto.

The second question is that relating to the refusal of the trial court to delay the trial of the case on account of the alleged inability of Rudolph to be present at the trial by reason of his engagement in the military service of the United States. The only evidence of such military service is an affidavit on the part of a superior officer, in which it is stated that...

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    ...recognizes a clear and valid distinction between them. The difference is indicated by this Court in the case of Stone v. Rudolph, 127 W. Va. 335, 32 S. E. 2d 742. The opinion cites with approval the Virginia case of Thomas v. Snow, 162 Va. 654, 174 S. E. 837, and in quoting from the Thomas ......
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