*1 and Fonda Kenneth Jarrett Jarrett Harper corp. Son, Inc., E. L. &
(No. 13726) Decided June 1977.
Goodwin, Goodwin, Bryan Robert, Stephen & P. Good- appellants. win,
Earley, Bailey Pfalzgraf, Jr., Bailey, & John S. appellee.
Harshbarger, Justice:
Kenneth and Fonda Jarrett’s water well on their Jack- County, Virginia property destroyed by son West Inc., building for a Sons, a sewer Harper a contractor & without water The Jarretts were public district. service completed. weeks, new well was five when a $5,000.00 Sons, Harper Inc. for to recover & sued $766.82, carrying new well’s cost *2 the compensation their in- neighbor, and for from a water conveniences, annoyance, hardship, discomfort. jury a trial. demanded discovery by that in addi- defendant revealed
Pretrial expen- plaintiffs had other cash the new well cost tion to expenses, buckets and laundromat ditures of for $115.30 items. other by out-of-pocket
Having the cash discovered judgment The plaintiffs, confessed for defendant $882.12. thought apparently that the amount for court plaintiffs judgment all that was defendant confessed judgment order in legally to and entered were entitled plus All this sans plaintiffs costs. favor of the $882.12 motion, jury notice, hearing, sans trial. evidence following paragraph appeared in the order: The the other elements “The Court then considered by represented alleged damage to the as Court the for the Plaintiffs and denied same counsel by they supported ade- as were not inasmuch judgment quate proof thereon and entered the Defendant.” excepted. plaintiffs
Counsel explanation how the The discloses no about record acceptance judge at his decision to force trial arrived Considering judgment upon plaintiffs. this confession considering jury R.C.P., trial the Rule W.Va. in the box when demand —the proceeding abruptly hold his action terminated —we in error. to be provides:
Rule W.Va. R.C.P. (b) defending Payment party into court. —A may pay depositing against a claim into court money with the clerk a sum of on account of claimed, by way compensation what is or or amends, plead that he is not indebted to greater party making amount to the or claim party making the claim has not suffered greater damages.. party making The the claim (1) accept judgment the tender and have (2) (3) costs, reject tender, accept his or part payment only proceed tender as with his action on the sole issue of amount damages. (c) accepted. not offer under subdivi- Offer —An (b) accepted
sion ... above not in full satisfaction withdrawn, i.e., shall be deemed shall not be dis- jury, closed to the and evidence thereof except proceeding admissible to determine judgment finally costs. If the obtained offer, offeree is not more favorable than the pay offeree incurred after must costs making of the offer. The fact an offer accepted, only accepted made but not or *3 payment, preclude subsequent does not offer. (c) Clearly, 68, under subsection of Rule when a defen- . judgment only partially dant’s offer of satisfies plaintiff’s damages plaintiff rejects claim and either .for payment only, accepts or it as tender must consider the offer withdrawn and submit the case to the where as here one has been demanded. The trial court’s action cannot- be reconciled with Virginia theory damages prop- about to which real West erty entitled, injured by property are owners whose is wrongful acts others. of injuries
Our cases disclose the to real are temporary permanent. either And the mea- classed or damages depend upon sures of the classification. temporary injury are when the is intermittent occasional, or the cause of the and its effects remedied, removed, capable being are or abated. When temporary, proper damages measure of is abatement; remedy, compensa- is the cost of removal or 402 rent; for actu or and reimbursement
tion for loss of use
injury.
v. Paramount
Cline
al
caused
(1973);
641,
Pacific,
Inc.,
87
O’Dell
156
Va.
196 S.E.2d
W.
(1965);
McKenzie,
346,
388
Akers
Va.
145 S.E.2d
v.
150 W.
682,
Co.,
Refining
Va.
80
139 W.
v. Ashland Oil
Parkersburg,
(1954);
City
v.
138 W.
884
McCabe
S.E.2d
Pennsylvania
(1953);
Rail
830,
v.
But our has involved Court determining particular into which classification Cline, Caplan falls. Justice wrote in 196 S.E.2d at Chief 90: the character “Whether temporary is, permanent or as reflected courts, decisions of this and other sometimes dif-
ficult to resolve.” Manley Brown, 564, 567, W. Va. S.E. (1922) damage to a Plaintiff had it involved stone wall. repaired repairs. and sued defendant for the cost of The said: Court *4 insists, however,
“The defendant that the plaintiff was not entitled to recover the full paid by restoring amount her the wall and repairing damage; the that the true measure of is the difference between the value of plaintiff’s property before the wall fell and Ordinarily it is true that immediately afterward. injury to real damages for an measure of value of it immedi- the difference in the estate is injury immediately is ately after the before recovery of inflicted. But can it be said than another damages in more this case injury way applying The inflicted as that rule? property value of the compared with the total inconsiderable, cases it has been and in such was may repair injured party the dam- held making age him and recover the cost done words, may he restore his repairs. In other such it before the condition in which was to doing inflicted, and the cost of represent between the exact difference this will and after the of the before the value injury.” damage thusly
Judge married the measures Ritz repair was the differ- simply by saying that the cost of injury! in value before and after ence meaningful manageable mesh- a more We believe by eliminating possible simply ing of the measures is The result temporary permanent classifications. personal to to the rule about would be similar may realty injured recover the owner property. When expenses stemming repairing plus from his the cost of during repair period. injury including loss of use repair repaired or the cost of If cannot be value, property’s then the own- market would exceed money equivalent value of its lost recover the er injury including resulting plus from the his deprived during been of his the time he has loss of use property. measures of dam between cases that differentiate Our “temporary” or
ages
real
on
point.*
overruled on that
“permanent” bases are
*
4; Lyon
See,
swpra
Chemical
Grasselli
at 3 and
case citations
Hope
Co.,
Natural
Moore v.
Gas
(1928);
518,
Va.
An allowing expenses of the rationale in injury repaired made, where the using cannot be can be example. Suppose this case as an the Jarretts were not getting in they successful water from the new well destroyed drilled —that their old well caused property. the water source to leave their The loss property of value of their waterless would be recover- irreparable. able because was And their ex- penses hauling in going water to the laundromat by should also be recoverable them until such time as compensation provided to make them whole for property. their lost encompasses present
This rule both of the measures recovery and adds thereto incidental ir- to reparable injuries.
Here, given present law, state of our we have a temporary, repairable, replaceable for which plaintiffs compensation are entitled to expendi- for their money tures of appears and labor. Their now to good be in as injury. condition as it was before the But they are entitled to and develop must be allowed to their consequential damages. case for recovery Plaintiffs also seek for loss of use of their allege annoyance, “gen- inconvenience unpleasantness” eral as elements to be considered in proving Ordinarily, loss of use. loss of use is measured profits lost or lost rental value. When that standard apply diffcult to question because the in commercially, necessary not used be to formulate damages a measure uniquely adapted is more to plaintiffs’ injury. Thus, annoyance we find that properly inconvenience are considered elements damages plaintiffs the measure are entitled to recover, provided that these considerations are mea- objective sured ordinary persons an standard act- ing reasonably given under conditions. Green v. Gen- Corp., eral Petroleum 205 Ca. P. See City Wright, also Richmond v. 151 Va. 145 S.E. (1928) Virginia where the indicated that had plaintiff prayed proved for and for “inconve- nience, annoyance by injury and discomfort” caused property, recovery real prop- therefore would have been er.
The record reveals certain evidence aimed at estab lishing that anguish, the Jarretts suffered mental al though complaint their specify anguish does mental *6 injuries. of their prepared are not We in this case recovery pain suffering. See, to allow for mental Byrne, (S.D. Bishop Supp. 1967); v. 265 F. 460 W.Va. Toler Cassinelli, 591, (1946); v. W. Va. 41 129 S.E.2d 672 Monte Co-operative Co., 340, leone v. Transit 128 W. Va. 36 (1945); S.E.2d 475 Telegraph Davis Western Union Co., W. S.E. comply
Because the trial court did not with Rule dealing W.Va. R.C.P. in judg- with of defendant’s offer plaintiffs ment and because are entitled to a trial to any compensation they determine additional are due be- property, the cause of to their the of action trial court is reversed and the case is returned for trial.
Reversed and remanded. concurring'. Neely, Justice, specifically purpose pointing I concur for of out salutary today regard that rule announced with to damages prob- measure of real to ably applies personal prop- also to to erty. rule, be, if
The new such it seems to me an act of justice, people damage divine in that with to personal property, particularly their automobiles annoy- now be able to sue also for inconvenience These, obviously, types damage ance. two are mitigated quick Everyone can be settlement. knows go that it is difficult to to than less a thousand dollars, yet involving accidents far less than deprive transpor- that often necessitous families their tation for months. Some of the in the bandits insurance business, minority companies point happy a I to am proposition out, predicate company policy on the their them, realistically, person a cannot sue accordingly. damage. offer settlements If a is different from other business. Insurance shop, pounds goes a asks for two man into butcher meat, payment, in he will ex- ground and tenders $2.89 forthcoming grinder. Imag- pect from the meat to be his meat, his the customer to ask for ine scene were to butcher has no intention deliver be answered my re- meat?” the customer would the same.“Where give ply, possibly in than “I won’t other dulcet tones. meat,” firmly. give you any replies “Then butcher elsewhere,” my go says I me back shall $2.89 you either,” replies give “I won’t customer. $2.89 you get butcher, bring law from “for must a suit to property damage me.” Pow! Blam! And much Sock! different sort. colloquy proceeds regularity
Yet
with
such
leaps in-
area
The case of fire insurance
of insurance.
deny
stantly
companies
frequently
mind
liabil-
when
ity
with their own insureds. Further-
under
contracts
negligently
more,
damaged
if man’s car is
another
*7
a
carrier,
recognizing
party,
the tort-feasor’s
insurance
forthwith,
liability,
pay
full
well decline to
well
ability
injured
relying
upon
to wear
vic-
instead
its
stamps
legal
and the cost of
for
tim down with
meaningless
correspondence.
exchange
process
steps
this
our new rule
And now
into
absurd
annoyance
I
inconvenience.
for one would
on
annoyance
and inconvenience
reverse
a
verdict
monstrous,
all
unless
were
and such that
mankind
against
Majestic
v.
it at
blush. Addair
must exclaim
first
_
Co., Inc.,
_,
Elmer E. Sizemore Compensation State Workmen’s Commissioner Corporation Union Carbide (No. 13810) Decided June 1977. Shinaberry, Hostler Shinaberry, & F. Sterl Charles M. Kincaid, appellant.
Benjamin Tissue, Legal Dept., D. Carbide, Union appellees.
Miller, Justice: *8 appeals
Elmer an Sizemore order of the Workmen’s Board, Compensation Appeal compen- which denied him ground sation benefits on that his was a result of an compensable. “assault” not therefore dispute The facts are Appeal find we