148 S.E. 193 | W. Va. | 1929
The defendant, Ben S. Baer, obtained this writ to a judgment of the circuit court of Ohio county against him, as surviving partner of the firm of Union Warehouse and Storage Company, composed of himself and his brother, Joseph H. Baer, in favor of the plaintiffs, Albert P. Welty, Elmer Z. Welty, John H. Welty and Elwood Zoeckler, partners, under the firm name of Welty-Buick Motor Company, for $3249.43, in an action of trespass on the case.
During a period before and after the 15th day of January, 1921, the plaintiffs, as tenants of George M. Ford, occupied the first three floors and basement of a five-story brick building, 41 feet by 146 feet, in the city of Wheeling, West Virginia, in the conduct of an automobile business. During the same period, the Union Warehouse and Storage Company occupied the fourth floor of said building, as tenant of the owner, George M. Ford, in operating a general storage business. Due to alleged overloading by the Storage Company of the said fourth floor, on the 15th day of January, 1921, an area thereof 21 feet by 28 feet, and its burden, fell, carrying down with them to the basement, similar areas of the lower floors and numerous items of personal property belonging to the plaintiffs. This action was instituted against Ben S. Baer and George M. Ford to recover for the damages to and loss of the property of the plaintiffs, resulting from the crash, and the expenses of salvaging the articles reclaimed from the debris.
The assignments of error challenge, the action of the trial court in overruling a demurrer to the original and amended declarations, and the sufficiency of the evidence to establish either negligence on the part of the warehousemen or damages to the extent of the verdict.
The basis of the demurrer is alleged misjoinder of defendants. The original and amended declarations allege, substantially, that the crash was due to the negligent overloading of the floor by the tenants, Ben S. Baer and Joseph H. Baer (trading as Union Warehouse and Storage Company), with the authority, consent and connivance of the landlord, George *228
M. Ford. This is a sufficient charge against the tenants and landlord as joint tort-feasors. Brunswick, Balke, Collender Co. v. Reese,
Following are the items of damage claimed by the plaintiffs: *229
"1. Time account for the time of employees and partners necessarily employed in the working of cleaning up, salvaging, re-inventorying, etc. ......................................... $ 988.04
2. Destruction of wooden bins containing Buick and G. M. C. parts ........................... 207.00
3. Loss of an electric armature ................. 23.63
4. Loss of G. M. C. Truck parts ................. 98.85
5. Loss of Buick parts, kept in bins and carried on cards ..................................... 466.72
6. Merchandise loss (including Buick parts not carried in bins or on cards) ................. 453.21
7. Shop equipment loss .......................... 89.37
8. Water cooler loss ............................ 10.00 -------- Total .................... $2,337.32."
In the first item, $650.00 is charged for alleged services rendered by the plaintiffs and their office force at the rate of $50.00 each person per week. This, in our opinion, is an exorbitant charge. During the period for which it is made, the plaintiffs and their office force gave their usual service to the chief business of the firm, the sale of automobiles and motor trucks. Besides, the employees of the Storage Company performed considerable service in clearing the wreckage. The building was repaired by the owner.
In view of this situation and the fact that the verdict exceeds even the amount claimed by the plaintiffs with interest from the date of the accident in the sum of $60.62, we are of opinion to reverse the judgment complained of, set aside the verdict of the jury, and award the defendant, Ben S. Baer, a new trial. The trial court should set aside a verdict clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover. Pittsburgh-Wheeling Coal Company
v. Wheeling Public Service Company,
Judgment reversed; verdict set aside; new trial awarded. *230