Barker v. Withers

• Decision Date: 15 May 1956
• Docket Number: No. 10789,10789
• Citation: 92 S.E.2d 705,141 W.Va. 713
• Court: West Virginia Supreme Court
• Parties: Madaline BARKER, Doing Business as Barker Dress Shop, v. Charles T. WITHERS and Thelma J. Poindexter.

Page 705

92 S.E.2d 705

141 W.Va. 713

Madaline BARKER, Doing Business as Barker Dress Shop, v. Charles T. WITHERS and Thelma J. Poindexter.

No. 10789.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1956.

Decided May 15, 1956.

Syllabus by the Court.

1. The principal elements of the doctrine of res ipsa loquitur are stated as follows 'There must be reasonable evidence of negligence. But where a thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.' Pt. 3, syl., Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L.R.A. 499. But where there is no reasonable evidence of negligence nor proof showing that the agency which caused the damage is under the management of the defendant or his servants, the rule is inapplicable, and no inference of negligence may be drawn by the jury.

2. 'In the absence of a special contract, the law does not impose on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him, unless shown to be such as are used in common by different tenants, and over which one tenant, as such, does not have exclusive control.' Pt. 1, syl., Redden v. James T. McCreery Co., 123 W.Va. 367, 15 S.E.2d 150.

Tom T. Baker, Chad W. Ketchum, Huntington, for plaintiff in error.

No appearance for defendant in error.

LOVINS, Judge.

A writ of error and supersedeas was allowed by this Court on the petition of Thelma J. Poindexter on December 5, 1955.

This is an action of trespass on the case brought in the Circuit Court of Cabell County by Madaline Barker, doing business as Barker Dress Shop, plaintiff, against the defendants Charles T. Withers and Thelma J. Poindexter, to recover for an alleged injury to the merchandise of the plaintiff, caused by the alleged negligence of the defendants.

The case was tried by a jury upon a plea of the general issue, with the result that the jury returned a verdict in favor of the plaintiff and against the defendant Poindexter, in the amount of $657.03, and found for the defendant Withers.

The plaintiff in December, 1953, was operating a dress shop on the ground floor of a building owned by the defendant Poindexter in the Town of Barboursville, Cabell County, West Virginia; the defendant Withers maintained offices for the practice of dentistry in the same building and directly over the plaintiff's dress shop; both plaintiff and defendant Withers were tenants of the defendant Poindexter.

On the morning of December 19, 1953, at about 9:00 A. M., when the plaintiff's daughter entered the dress shop, it was discovered that water had been and was coming through the right rear portion of the ceiling in the dress shop, directly underneath the operating room of the defendant Withers, which contained dental equipment owned, used and operated by him. The water caused damage to the goods and merchandise of the plaintiff. Water was found upon the floor of defendant Withers' operating room directly over the dress shop. The only water outlet in the operating room was the one that connected with defendant Withers' dental unit and all water draining therefrom had to pass through a receptacle which was a part of such unit.

The drain pipes from the dental unit were outside and at the rear of the building; descended to the ground where they connected with an underground sewer pipe. This sewer pipe led only to Dr. Withers' bathroom, which was also on the second floor of the building. the drain pipes were not broken. The weather had been freezing for several days and continued to be freezing until the afternoon of the day the water damage was discovered. There is testimony that after the damage complained of occurred, an employee of the defendant Poindexter appeared on the premises and placed a boxing around both of the exterior sewage and water disposal pipes. There is no evidence to connect defendant Poindexter in any way with the water damage. The only evidence concerning the defendant Poindexter is that she owns and leases the premises to the plaintiff and defendant Withers.

The defendant Poindexter raises three issues:

(1) Did the trial court err in refusing to direct a verdict for the defendant Poindexter at the conclusion of the plaintiff's evidence and again at the conclusion of all of the evidence?

(2) Did the court err in giving to the jury, over the objection of the defendant Poindexter, plaintiff's Instruction No. 1?

(3) Did the court err in overruling the defendant Poindexter's motion to set aside the verdict of the jury and award her a new trial?

Under the rule set forth in Porter v. Woodard, 134 W.Va. 612, 618, 60 S.E.2d 199, the certificate found in this record is sufficient to make the evidence a part of the record.

This case was tried on the theory that the rule of res ipsa loquitur applied. In Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 667, 28 S.E. 733, 735, 39 L.R.A. 499, the rule is stated in a quotation from the opinion in Scott v. Dock Co., 3 Hurl. & C. 596:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

See Jones v. Riverside Bridge Co., 70 W.Va. 374, 73 S.E. 942, and Jankey v. Hope Gas Co., 98 W.Va. 412, 417, 127 S.E. 199. In later cases, this Court has...