Adkins v. City of Hinton

• Decision Date: 29 June 1965
• Docket Number: No. 12353,12353
• Citation: 149 W.Va. 613,142 S.E.2d 889
• Court: West Virginia Supreme Court
• Parties: Luther G. ADKINS et al. v. The CITY OF HINTON, a Municipal Corporation.

Page 889

142 S.E.2d 889

149 W.Va. 613

Luther G. ADKINS et al. v. The CITY OF HINTON, a Municipal Corporation.

No. 12353.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1965.

Decided June 29, 1965.

Syllabus by the Court

1. One is answerable for the ordinary and proximate consequences of his negligence, and this liability includes all those consequences which may have arisen from the neglect to make provision for dangers which ordinary skill and foresight are bound to anticipate.

2. 'Where the evidence given on behalf of defendant is so clearly insufficient to support a verdict for him that such verdict, if returned by the jury, must be set aside, and the evidence in support of plaintiff's claim is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.' Point 4, Syllabus, Vaccaro Brothers & Company v. Faris, et als., 92 W.Va. 655, 115 S.E. 830.

3. For an act of God to constitute a valid defense and exonerate one from a claim for damages, it must have been the sole cause, and not just a contributing cause of the injuries or damages sustained.

4. 'Ordinarily the proper measure of damages for the loss or the destruction of personal property, other than that which has a peculiar value to its owner, is the fair market value of the property at the time of its loss or destruction.' Point 6, Syllabus, Cato v. Silling, 137 W.Va. 694, 73 S.E.2d 731.

W. A. Brown, Hinton, for appellant.

William Sanders, Warren R. McGraw, Joseph G. Martorella, Princeton, for appellees.

CAPLAN, Judge:

In this civil action, instituted in the Circuit Court of Summers County, the plaintiffs, Luther G. Adkins and Dorothy S. Adkins, husband and wife, seek to recover from the defendant, The City of Hinton, damages for the destruction and loss of certain real and personal property alleged to have been caused by the negligence of the defendant. The complaint was filed in two counts. The first count complained of the negligent conduct of the defendant resulting in damage to the real and personal property of Hayes G. Criddle and Mattie M. Criddle; the second count made a similar complaint in relation to the real and personal property of Luther G. Adkins and Dorothy S. Adkins. Prior to the beginning of the trial the court ruled that these causes of action were not properly joined and required the plaintiffs to indicate which count they would try. The count concerning the Adkins property was selected and the trial proceeded thereon.

At the conclusion of all of the testimony and after the parties had rested the court, on the motion of the plaintiffs, directed the jury to find the defendant city liable as a matter of law and to return a verdict for the plaintiffs in an amount it believed would fully and fairly compensate them for all losses and damages sustained which they had proved by a preponderance of the evidence. Thereupon the jury returned a verdict for Dorothy S. Adkins for damages to her real property in the sum of $7,500.00 and a verdict for Luther G. Adkins, assessing his damages at $500.00 for the loss and damage of his personal property.

It is this action of the trial court of which the defendant complains on this appeal. The defendant asserts that the damage to the property of the plaintiffs was caused by an extraordinary rainfall constituting an act of God; that in such circumstance the defendant city could not be held liable for the resulting damage; and that the question of whether such damage was caused by an act of God was for jury determination rather than by the court.

The following factual situation, as reflected by the evidence, gave rise to this cause of action. In 1930 the defendant, The City of Hinton, established on its property and has since operated an incinerator and refuse dump which has been used for the disposal of garbage, waste, trash and refuse of all sorts. Throughout the years the defendant has dumped or has permitted to be dumped large quantites of refuse on this property, so that a huge mound of debris has built up against the original and natural slope of the bank. According to the testimony of J. W. Stokes, city health officer of Hinton, the area upon which the dump was located was unsatisfactory for that purpose in that it was too steep an incline and formed a hazard from the very beginning. It was to have been used for a period of not more than twenty years and its continued use has emphasized its inadequacy for that purpose. There is an abundance of testimony in the record of this case which reflects the hazardous condition caused by the existence and continued use of this city dump.

The plaintiffs, for approximately twelve years prior to March 12, 1963, resided in a home situated below this city dump property and near Briers Creek, a small stream which runs adjacent to the dump and to their property. The exact distance the plaintiff's property was located from the dump is not readily discernible from the record, but it appears to have been a few hundred yards down the hill therefrom.

On March 11, 1963 this area was subjected to a hard, steady rainfall which continued most of that day and into the night. Several neighbors of the plaintiffs testified that during that rainfall debris from the dump was washed down the bank into the creek. At approximately one-thirty on the morning of March 12, 1963 a huge mound of debris, constituting a sizeable portion of the dump, broke away and slid down into the hollow like an avalanche over and upon the real and personal property of the plaintiffs, thereby destroying and demolishing said property. It is this damage which constituted the basis for this action by the plaintiffs.

It is the plaintiffs' contention that the city's negligence in continuing to use this area as a dump, in the face of frequent and repeated warnings of its hazardous condition, caused the damage complained of here; that it was well aware of the danger involved to the residents of that neighborhood; that the defendant city failed and refused to take any measures which would materially remedy the situation; and that because of its knowledge of the hazardous condition of the dump, the damage which the plaintiffs suffered was clearly foreseeable.

In addition to its theory that this damage was caused by an act of God, the defendant now invokes the defense of assumption of risk on the part of the plaintiffs. This defense was not pleaded in the defendant's answer and, being an affirmative defense, will not be considered here. Rule 8(c) of the West Virginia Rules of Civil Procedure provides that in response to a preceding pleading a party shall set forth affirmatively such defenses as are listed therein. The defense of assumption of risk is included in that section.

The principal question to be resolved on this appeal is whether the action of the trial court in directing a verdict for the plaintiffs was proper. Admittedly, the only defense offered to the complaint of the plaintiffs was that the damages complained of therein were caused by an act of God. It is necessary, therefore, to consider the evidence adduced at the trial for the purpose of determining whether that defense raised a question which should have been decided by the jury.

The evidence pertinent to this consideration concerns not only the severity of the rainfall on March 11, 1963, but also that relating to the acts or omissions of the defendant in relation to its operation of the city dump. Many witnesses testified that the rainfall during the period in question was steady. Others said that it had rained hard. None, however, related that rain fell in extraordinary quantities or that there was a deluge or flash flood. A witness for the defendant, Charles Hockerman, manager of the Bluestone Project testified that 2.92 inches of rain had fallen in the eighteen hours prior to the occurrence of the damage to the plaintiffs' property. He further said that such a rainfall could have been foreseen in the springtime. That this was an ordinary heavy rain which frequently fell in the spring of the year was supported by the testimony of several other witnesses. Furthermore, it is pertinent that the damage to the plaintiffs' property was not caused by water but rather by the mass of debris which broke away from the city dump.

An act of God has been defined as such an unusual and extraordinary manifestation of the forces of nature that it could not under normal conditions have been anticipated or expected. State ex rel. Summers v. Simms, 142 W.Va. 640, 97 S.E.2d 295. In the instant case the evidence falls short of a showing that the rainfall of March 11, 1963 constituted an act of God. There is no evidence of an unprecedented flood of waters or of an extraordinary manifestation of the forces of nature of the character that could not have been anticipated or expected. To the contrary, the strongest testimony revealed that the area in question was subjected to a heavy spring rain. We, therefore, are of the opinion that the defense that the damages were caused by an act of God is without merit.

It is now necessary to consider the evidence in order to determine whether the acts or omissions of the defendant constituted negligence resulting in the damages of which the plaintiffs complain. While the testimony in the record of this case is voluminous, there is little, if any, dispute as to the material facts. It is undisputed, for...