83 W. Va. 671 | W. Va. | 1919
By this writ of error plaintiff seeks reversal of a judgment of the circuit court of Kanawha county denying him a writ of error to a judgment for defendant, rendered by the intermediate court of said county, upon a directed verdict in an action for personal injury.
Defendant kept a fruit store, lunch counter and pool room at the corner of Capitol and Dryden Streets in the City of Charleston. He employed a clerk by the name of Victor Cally, who waited on the customers and collected the fees charged for the use of the pool tables. Plaintiff swears he went into defendant’s place of business one Saturday evening in January, 1918, to get a hot sandwich and, just as he entered the place, Cally ran around to the lunch stand, “grabbed his gun” and shot him with it. He says he was molesting no one at the time and simply went into the building to get something to eat, as he had often done before. It appears
Defendant offered no evidence and, notwithstanding the foregoing testimony is uncontradicted, the court directed the jury to return a verdict for defendant.
Should not the evidence have been allowed to go to the jury? If it is sufficient to support a verdict for plaintiff, if the jury had been permitted to pass on it, and had so found, it follows that the court erred in taking the case from the jury. It is not claimed that defendant committed the act that injured plaintiff. But may he. not be liable for the act of his clerk or agent? He kept a place for the accipmmodation of the public, a place to which they were tacitly invited, and hence defendant was not a trespasser, he had a right to be there. There is no evidence that he was boisterous or disorderly, or that he attempted to take part in the fight; nor is there any evidence that Cally shot in self-defense and acci
Moreover, defendant being present, the jury could very properly infer from the testimony that he was aiding and abetting his servant in the commission of the wrong, for they were both engaged in the fight, and there is no exculpating evidence to justify the act which was the proximate cause of plaintiff’s injury. If defendant did aid and encourage his servant Cally, he is just as liable for the wrong as Cally himself is. In that event he would be liable as a principal. Hunt v. Di Bacco, 69 W. Va. 449.
The judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and remanded.