O'Dell v. Universal Credit Co
In O'Dell v. Universal Credit Co., 118 W. Va. 678, 191 S.E. 568 (1937), the plaintiff's decedent had been killed when he was struck by an automobile driven by Hager, the purported agent of the Universal Credit Company.
Plaintiff subsequently brought an action against both Hager and Universal, but later voluntarily dismissed Hager prior to trial.
On appeal, Universal argued that Hager's dismissal necessarily prohibited further proceedings against it, "since its liability was dependent upon Hager's." Id. at 680, 191 S.E. at 570.
The Court rejected this argument, stating that "the effect of dismissing Hager was to relinquish the instant action against him only." Id.
The Court went on to hold in syllabus point one of O'Dell:
"In a joint action of tort against master and servant, the plaintiff may dismiss the servant for a reason not going to the merits, without impairing his right to proceed against the master, although the latter is liable only under the doctrine of respondeat superior."
O'Dell therefore permits a plaintiff to voluntarily dismiss a negligent agent while still maintaining an action against the vicariously liable principal.