45 W. Va. 533 | W. Va. | 1898
On a writ of error, the plaintiff complains that the circuit court did not quash the certiorari allowed the defendant in the above case to a judgment of a justice founded on the verdict of a jury for three hundred dollars, but reversed the judgment and awarded a new trial. The facts are as follows: The plaintiff rented of the defendant the first story and the basement of a certain building situated on Quarrier street, in Charleston. The upper portion of the building was rented by other tenants, except a certain room, which was vacant. On the night of the 4th of February, 1898, an exposed water pipe in this vacant room burst, and the water ran out, down into the room occupied by plaintiff and damaged his goods to a sum in excess of the three hundred dollars damages demanded. The place to turn off the water from the building was in the basement, rented by plaintiff, and no one could reach it except by his permission. During the middle of the night, when the leak-ag-e was discovered, a messenger was sent to plaintiff, who lived some distance away, to inform him and get the key; and the water was then turned off, and due effort made to save plaintiff’s goods, consisting of musical instruments, etc.
On the trial of the case before the jury, the justice on motion of the plaintiff, gave the two following instructions, to which defendant objected: “(1) That if the jury believes from the evidence adduced that the plaintiff was a tenant of the defendant, and that in consequence of the defective plumbing- or want of repairs, or negligence of the defendant, the plaintiff suffered an injury to his property without any fault of his own, then the plaintiff is entitled to recover damages for theinjury sustained inconsequence thereof. (2) If the jury find that the defendant is liable to the plaintiff, that the measure of damages for the injury done is that amount that will compensate and make the plaintiff whole, — the difference in value of the property injured between that which was immediately before the inju.-ry done, and that afterwards.” These instructions appear to properly propound the law, and are simply to the effect that if the damages suffered by the plaintiff were
The defendant asked for the following five instructions, which were refused by the justice: “(1) The court instructs the jury that if they believe from the evidence that there was no express contract to the effect that the landlord, Cautley, should keep in repair the house and tenement occupied by her tenant, Michaelson, then they should find for the defendant, Cautley. (2) The court instructs the jury that, if they believe from the evidence that there was no express contract on the part of Cautley to keep in repair the building leased from her by Michaelson, then the jury should find said defendant, Cautley, not liable for any damages which plaintiff, Michaelson, might have suffered from water leaking and running down from apartments in said building- above those occupied by Michaelson. (3) The court instructs the jury that if they believe from the evidence that the landlord, Cautley, had not covenanted to repair the building-leased by her tenant, Michaelson, and
The only remaining question is as to whether the circuit court erred in setting aside the verdict of the jury on the evidence alone. In the case of Grogan v. Railroad Co., 39 W. Va. 415, (19 S. E. 563, syl. point 2): “Though evidence is conflicting, the court may set aside the verdictif ag'ainst
the purpose of, so far as possible, obviating the evil effects of the holding of the Court in the case of Barlow v. Daniels, 25 W. Va. 512, and Hickman v. Railroad Co., 30 W. Va. 296, (4 S. E. 654, and 7 S. E. 455), that a fact tried before a justice’s jury of six persons could not be otherwise reexamined than according to the rules of the common law (meaning thereby writ of error), and that a justice’s tribunal, not being a court of record, to which such writ lies, the Constitution inhibited the re-examination of jury trials before justices by an appellate court in any manner whatsoever, thus making them a finality. To sustain the position taken by the Court at that time, it was held that the word “appeals,” as used in the clause of the twenty-eighth section of Art. VIII. of the Constitution, in these words, “appeals shall be allowed from judgments of justices in such manner as maybe'prescribedbylaw,”wasusedin its tech-nichal sense strictly, and did not include appelate proceedings generally, and that, therefore, the legislature had no authority to grantsuch “appeals”in cases where a jury trial was involved. See Judge SnydeR’s opinion, 25 W. Va. pages 521 to 523 inclusive. Yet in the case of Fouse v. Van-
In the present case the justice permitted, as is usual in
From these considerations, the conclusion follows that the circuit court did not abuse its appellate powers in setting aside the verdict of the jury and granting the defendant a new trial; and therefore the writ of error granted by this Court is dismissed, as improvidently awarded.
Dismissed.