171 S.E. 426 | W. Va. | 1933
The defendants have been awarded writ of error to a judgment of the circuit court of Logan County for $10,000.00 in favor of the plaintiff, on verdict.
Plaintiff's decedent, her husband, a man of 26 years, was killed the morning of February 1, 1932, in a highway collision between the delivery truck which he was driving and a five-passenger sedan owned by defendant Thornbury and driven by defendant Minton.
Thornbury resided at the town of Wilkinson about two and one-half miles from the city of Logan. Minton and his partner, Ward, conducted a filling station, garage and repair shop at the village of Monitor Junction about midway between Wilkinson and Logan. In the evening of January 31, 1932, Thornbury had a conversation with Minton whereby arrangements were made for Minton to do certain repair work on Thornbury's automobile the following day. In the same conversation *189 it was arranged that Thornbury's son, Edward, present at the time of the conversation, should drive the car the following morning to Logan where he was attending high school; that en route he should stop for Minton at his garage at Monitor Junction; that Minton should accompany him to the high school where Minton should take charge of the car and drive it back to his garage and there make the repairs. In pursuance of that arrangement, Edward, accompanied by a school boy companion, drove the automobile the following morning to Monitor Junction where Minton joined them and rode on the rear seat of the car to Logan; there, he moved into the driver's seat and started to drive the car toward his garage. When he had driven to within about a quarter of a mile of his garage, he says the thought came into his mind that he had failed to procure at Logan certain parts which he would need in repairing the automobile and that he slowed down to turn for the purpose of returning to Logan to get the desired parts. He started to leave the highway to his left where there was a broad level space suitable for turning. Plaintiff's decedent was approaching in the delivery truck from the opposite direction. He turned to the right. The truck and the sedan collided several feet off the 21-foot wide concreted portion of the highway. The impact was severe and resulted in the death of the driver of the truck.
There was a conflict of testimony as to whether Minton turned the sedan abruptly to the left when but a short distance from the approaching truck, or whether he started turning gradually to the left at a sufficient distance from the truck to have avoided a collision if the driver of the truck had continued on the hard surface of the highway. There was thus presented a matter peculiarly for jury determination. As to Minton, we perceive no reason why the verdict and judgment should be disturbed.
As to Thornbury, the determinative question is whether at the time of the accident Minton was acting as an independent contractor or as Thornbury's agent. Unless there existed the relationship of master and servant, there is no liability upon Thornbury.
After Minton took charge of the car at the high school his course of conduct was in no wise subject to the supervision *190 of Thornbury. Minton became bailee of the car. The legal situation is no different than if the automobile had been left at his place of business.
Counsel for Thornbury has pointed us to two very similar cases. The first: Perry v. Fox,
Our recent case of Rogers v. Boyers,
In consideration of these matters, we affirm the judgment against Minton and reverse the judgment and set aside the verdict as to Thornbury, and remand the case for a new trial as to him.
Affirmed in part; reversed in part; case remanded.