151 W. Va. 941 | W. Va. | 1967
This action was instituted in the Circuit Court of Ohio County by the appellant, Leslie H. Cowan, as plaintiff below on May 29, 1964, against Paul Siges-mnnd and Anna Sigesmnnd and One Hour Valet, Inc., and later amended to include Marie Hirsch, doing' business as One Hour Valet Cleaners, defendants below, for damages as a result of a personal injury suffered by the said Leslie H. Cowan when a floor in a building-owned by the defendants Paul and Anna Sigesmnnd,
Tbe plaintiff was employed by tbe "Wheeling Electric Company as an inspector and tester of electric equipment and meters, and be also carried an authorization from tbe Public Service Commission of West Virginia in connection with tbe testing of electric meters. On November 1, 1962 be entered tbe premises in question in connection with bis duties. He went through tbe front room in which some of tbe cleaning was done and to which tbe public bad access as customers of tbe
After the plaintiff first went in the back room to observe the type of electrical distribution panel he returned to his truck to obtain his tool kit. He said he did not notice anything unusual in connection with the floor on the first trip but that when he came back with his tool kit as soon as he entered the back room and turned to his right he fell through the floor with one foot or leg on each side of the joist landing on his spinal tailbone, known to doctors as the coccyx. His kit fell through the space beneath the floor. After extricating himself from the hole through which he fell he recovered his equipment by going to the basement and then returned to the office of his employer, the Wheeling Electric Company, where he reported the accident. Some employees of the Company later on the same day or the day after inspected the scene of the accident and took pictures of the hole in the floor. The testimony of these witnesses indicated that at the place the floor
There is considerable conflict in the evidence on the part of Marie Hirsch and the plaintiff with regard to the condition of the floor at the time of the accident. Mrs. Hirsch was advised in October, 1962, by a boiler installer that she needed a new steam boiler and that the floor might have to be strengthened where it was to be placed. Witnesses for Mrs. Hirsch testified that just a few days before the accident they tore up the floor in the back room and started reenforcing it and replacing it with a new one in order to accomodate the new and heavier boiler which was necessary for the cleaning process and that when the plaintiff came to the building there was only a temporary floor in the center of the back room consisting of one of more boards across joists over which he wonld have to traverse to reach the area next to the electrical panel, although the area by the panel itself was still floored, and that he proceeded to go into the back room without properly identifying himself and over the objection of Mrs. Hirsch and her husband who informed him the floor was torn up. However, the plaintiff testified that he properly identified himself, entered the back room with the consent of the girl in the front room, and that when he entered the back room he observed no work whatsoever being done but that the floor looked dark; that when he fell through the floor the light was somewhat obscured, and although the floor looked dark, it appeared to be all right otherwise.
The plaintiff’s testimony was substantiated by Howard Johnson, the man who installed the boiler and who testified that between the time he first visited the establishment to negotiate the sale of the boiler, which was about the middle of January, 1963, and the time it was installed at the end of the month someone had refloored the room. Also, the evidence of the employees of the Wheeling Electric Company when they examined
After the accident the plaintiff returned to the office of his employer and was advised to go to the Ohio Valley General Hospital where x-rays were taken. He then went to the office of Dr. George B. Clarke, an orthopedic surgeon, where he was treated for his injury, but the pain continued to worsen and he went home and went to bed. He remained away from his work for a period of 25 days but after returning to work he continued to suffer considerable pain at the end of his spine and low back region with pain radiating down his leg. He returned for treatment from Dr. Clarke the latter part of 1962 and early part of 1963 after which time Dr. Clarke recommended the removal of his coccyx which was done in June, 1963, followed by a few days in a hospital. He remained off from work on this occasion from June 25,1963 until about September 11,1963. He continued to suffer pain at intervals which was attributable to lumbosacral joint injury and diagnosed as traumatic arthritis from damage to the disc space in the back. Dr. Clarke testified that he was of the opinion that plaintiff would continue to suffer pain the remainder of his life at intervals and that he would no doubt use a back brace at certain times. The doctor further testified that although his pain would not be constant that it would recur from time to time and he would have to take a considerable amount of aspirin.
The specific damages indicated by the evidence were loss of wages in the amount of $1935.36, medical and hospital expenses in the amount of $935.90, future medical expenses of about $75 per year and the cost of a brace at about $75, all of which would total approximately $3600.
We shall first take up the assignment of error upon which this appeal was granted relative to whether or not it was error for the trial court to set aside the verdict of the jury on the grounds that it was excessive.
In the case of Armstead v. Holbert, etc. and Conlon Baking Co., 146 W. Va. 582, 122 S. E. 2d 43, decided in 1961, in which the jury returned a verdict in the amount of $65,000 for a plaintiff, it was not necessary to decide whether or not the verdict was excessive in the disposition of the ease because it was reversed on other grounds. However, it was the view of the majority of this Court in the Armstead case that the verdict was probably too large but “* * * it could not be said to be excessive as a matter of law and would not be set aside upon the grounds of excessiveness alone.” In the Malcomí case it was stated that there was no exact
We are therefore of the opinion under the principle set out in the above cited authorities that the verdict of the jury in the case at bar in the amount of $35,000 should not have been set aside by the trial court.
Tbe general rule is that a landlord or lessor is not liable for personal injury sustained on tbe leased premises, by reason of a defective condition thereof, by tbe tenant or those entering on tbe premises under tbe tenant’s title. 52 C.J.S., Landlord and Tenant, §417; 32 Am. Jur., Landlord and Tenant, §665; Oliver v. Cashin, 192 Va. 540, 65 S. E. 2d 571. Ordinarily an invitee of a lessee or tenant stands in tbe same shoes as tbe tenant and tbe lessor is not liable for injuries suffered by an invitee of tbe tenant for defective condition of tbe premises. Oliver v. Cashin, supra; Garland v. Stetson (Mass.), 197 N.E. 678.
Tbis Court has held that after tbe premises are leased to tbe lessee tbe landlord is not bound to keep tbe premises in repair and that a tenant assumes tbe risk relative to tbe condition of tbe premises arising after be takes possession thereof. Gillespie v. Monarch Carbon Co., 98 W. Va. 485, 128 S. E. 318. See Stewart v. Raleigh County Bank, 121 W. Va. 181, 2 S. E. 2d 274, 122 A.L.R. 161. However, there are well-known exceptions to tbe general rule that a landlord or lessor is not liable to tbe lessee or bis invitee for injuries received on leased premises. One of tbe most usual exceptions found in tbe law is tbe “common use” situation, that is, where tenants or invitees of tenants are injured on part of tbe premises which can be used in common by tenants or by tbe public, such as sidewalks, passageways, bathrooms, etc. Tbis exception applies to all cases where tbe landlord retains control of certain places or things in connection with tbe leased premises. See Marsh v. Riley, 118 W. Va. 52, 188 S. E. 748; Paternostro v. Bradley, 262 S. W. 896; 52 C.J.S., Landlord and Tenant, Portions of Property under Landlord’s Control,
There are other well-known - exceptions under which tbe landlord or lessor is held liable in such cases where tbe lessor has knowledge of a defective condition at tbe expiration of a lease and does not disclose or repair such condition before be renews tbe lease or relets tbe premises. 32 Am. Jur., Landlord and Tenant, §760. See Hill v. Norton, supra.
Regardless of tbe general rules there are cases where by tbe very nature of tbe equipment or thing tbe control really is in tbe lessor or landlord, although it may also serve tbe lessee or tenant, such as adjoining walls, plumbing, electrical equipment, even though it is physicially located in tbe part of tbe building leased to tbe lessee located in tbe demised part of tbe building. 32 Am. Jur., Landlord and Tenant, Sections 744, 745, 746, 747 and 748.
Tbe status of tbe appellant was clearly that of an invitee. He was charged witb tbe duties of inspecting tbe electrical equipment and checking tbe meters. In such cases it is held that such inspector or a person
In the instant case the appellant was not only an invitee of the tenant but was an invitee of the landlord because it is clear from the evidence in this case that one of the reasons for his inspection and checking of the electrical meters located in the back room of the building owned by the appellees was to avoid and correct any situation that may have existed that would create a fire hazard to the building. It can thus be seen that he was not only an invitee of the appellees but was there on the premises for the benefit of the ap-pellees or land owner. This case would perhaps come under the exception contained in Section 361 of the Restatement of the Law, Second, Torts 2d, as being part of the land retained in the lessor’s control necessary for the safe use of the part leased as well as the other part of the building, because the inspection necessitated the checking of the wires passing through or located in the walls of the building owned by the appellees and would no doubt come under ‘ ‘ Comment (b)” of Rule 361 of the Restatement of the Law, Second, Torts 2d, wherein it is stated: ‘ ‘ The rule stated in this Section applies to the maintenance of walls, roofs, and foundations of an apartment house or office building. It applies also to any other part of the land the careful maintenance of which is essential to the safe use of the rooms or offices or portion of land leased to the various lessees, such as the central heating, lighting, or water system.” See R.K.O. Midwest Corporation v. Berling, supra.
The appellant was on the premises in question for a purpose common to both the lessee and the lessor because he not only checked the meters to ascertain the amount of electricity being used by the lessee, which was necessary to the lessee, but he was also on the premises for the benefit of the lessor in checking the wires and protecting the building from burning. Therefore, his presence on the premises at the time he was injured was a common purpose to both the lessee and the lessor, and in such case both would be liable if they knew or should have known of the dangerous condition and did not disclose it to the appellant. See syllabus point 2 of the case of O’Dell v. McKenzie, 150 W.Va. 346, 145 S. E. 2d 388.
Under the circumstances of the present case the appellant came on the leased premises as an invitee of the lessor and for his benefit to inspect electrical equipment, switches and meters of which under the circumstances of this case a measure of control was retained in the lessor, thus falling under an exception to the general rule that the landlord is not liable to third persons for injuries caused by dangerous conditions of
For the reasons stated herein, the judgment of the Circuit Court of Ohio County in setting aside the verdict of the jury and awarding the appellees a new trial is reversed, and the overruling of the motions for a directed verdict on the question of liability as to the appellees, considered in this Court under cross assignment of error, is affirmed; the verdict of the jury against the appellees is reinstated and the judgment entered thereon is reinstated by judgment entered in this Court. Code, 58-5-25.
Reversed in part; affirmed in part; verdict and judgment reinstated.