Bowlby-Harman Lumber Co. v. Commodore Services, Inc.

• Decision Date: 17 March 1959
• Docket Number: No. 10978,BOWLBY-HARMAN,10978
• Citation: 107 S.E.2d 602,144 W.Va. 239
• Court: West Virginia Supreme Court
• Parties: LUMBER COMPANY v. COMMODORE SERVICES, INC.

Page 602

107 S.E.2d 602

144 W.Va. 239

BOWLBY-HARMAN LUMBER COMPANY v. COMMODORE SERVICES, INC.

No. 10978.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 3, 1959.

Decided March 17, 1959.

Syllabus by the Court

1. The provisions of Code, 56-4-1, relating to the holding of Rule Days when a 'term of the circuit court commences on the first Monday in a month, or on either of the two following days, or on the preceding Tuesday, Wednesday, Thursday, Friday or Saturday', apply only to a regular statutory term of court.

2. Where a lessee by written agreement underlets the premises to a third party and retains certain reversionary interests in the premises, and the written agreement does not disclose a clear intent to the contrary, the written agreement will constitute a sublease, not an assignment.

3. A judgment non obstante veredicto must be based solely on the merits of the case as disclosed by the pleadings, without aid of any evidence.

Baker & Armistead, Charles S. Armistead, Morgantown, for plaintiff in error.

George R. Farmer, Benjamin G. Reeder, Morgantown, for defendant in error.

GIVEN, President.

Plaintiff, Bowlby-Harman Lumber Company, instituted its action of trespass on the case against Commodore Services, Inc., in the Circuit Court of Monongalia County, for recovery of damages alleged to have resulted from negligence of defendant, in the burning of a gasoline service station building owned by plaintiff. On the trial to the jury the plaintiff offered proof tending to establish that the fire which destroyed the building was the result of negligence of defendant in using gasoline, near open flames, to clean the floor of the building, and that the resulting fire damaged plaintiff in the amount of $8,370.61. The defendant offered no evidence to contradict that of plaintiff, either as to negligence or as to the amount of damages. At the conclusion of the trial the court refused to direct a verdict for plaintiff, but did direct a verdict for defendant, and denied a motion of plaintiff to enter a judgment for plaintiff, notwithstanding the verdict for defendant, and entered judgment for defendant.

The declaration alleges, in effect, that the defendant, on March 30, 1957, was engaged in the business of selling gasoline and other petroleum products on property owned by plaintiff, and on which the building destroyed by fire was situated; that defendant negligently used gasoline in the cleaning of the floor of such building, near gas heaters in which open flames were burning; and gases from such gasoline came into contact with the flames, resulting in an explosion, fire and destruction of the building.

Defendant filed its plea in abatement, alleging that process issued in the action was void for the reason that it was returnable to Rules of the Circuit Court of Monongalia County on the first Monday of September, 1957, that being Labor Day, and that the Judge of the Circuit Court of Monongalia County, on August 7, 1957, directed the holding of a special term of that court to commence on Tuesday, the third day of September, 1957; and that the circuit court did sit in special term on that day. The reply to the plea in abatement was to the effect that the term of court referred to therein was not a regular, but a special, term called for the third day of September, 1957, which facts were admitted by defendant to be true.

The defendant filed the general issue plea and also filed its Special Plea No. 1, alleging in effect that by lease dated April 16, 1954, plaintiff leased the premises on which the building destroyed by fire was situated to Elk Refining Company for a period of ten years from August 1, 1954, and that such lease contained the following paragraph: 'The Lessor agrees to insure the buildings and improvements upon the leased premises against damage by fire, with so called extended coverage, in an amount equal to the full insurable or reasonable value thereof, in solvent insurance companies authorized to do and doing business in the State of West Virginia, and to pay promptly all premiums upon such insurance. All such policies of insurance shall be carried in the joint names of the Lessor and the Lessee, as their respective interests may appear, and the proceeds of any such policies of insurance shall constitute a trust fund and shall be expended for the purposes above set forth.'

The special plea further alleged that the Elk Refining Company, by writing dated July 15, 1954, 'did lease' the same premises to a partnership composed of Cecil R. Parsons and Helen Galik for the 'entire period covered' by the lease executed to the Elk Refining Company; that plaintiff had knowledge of such writing, and knowledge that Parsons and Galik entered into possession of such premises; that subsequently defendant succeeded to the rights and title of the partnership to such premises, and entered into possession thereof as the 'successor and assign' of Elk Refining Company; that subsequent to the fire plaintiff filed proof of claim of loss by reason of the fire, and received from the insurance company which had issued the policy the full amount of the loss, which was 'paid to the plaintiff and by it held as a trust fund and used to repair and restore said building and premises', as provided in the lease from plaintiff to the Elk Refining Company. Attached to and made part of the written instrument from Elk Refining Company to the partnership was a 'Dealer Agreement' whereby Parsons and Galik agreed to purchase from Elk Refining Company certain petroleum products. The Dealer Agreement contained this provision: '* * * (b) that Dealer shall indemnify and save harmless the Company of and from any and all liability or claims for loss, damage or injury to persons or property (including, but not by way of limitation, the Dealer and his agents, servants, employees and representatives, and the property of any of them) caused or occasioned by any leakage, fire or explosion of petroleum products stored in any tank or contained or drawn through any pump * * * whether the same arises from negligence or otherwise * * *'.

Plaintiff's special replication to the special plea alleges, in effect, that the lease executed by the Elk Refining Company to the partnership was not for the same term, conditions or property as contained in the lease from plaintiff to Elk Refining Company, in that the term in the lease from plaintiff was for a term of ten years, while the term provided in the lease from Elk Refining Company was for one year from 'the 1st day of August, 1954, and shall automatically continue thereafter from year to year for a period of nine (9) additional years. Provided, however, the Lessee shall have the right to cancel this lease at the end of any yearly period by giving to the lessor sixty (60) days written notice of such intention'; in that the monthly rental provided in the lease to Elk Refining Company was $250.00 per month, plus one cent per gallon for each gallon of gasoline sold on the premises in excess of fifteen thousand gallons per month, while in the lease from Elk Refining Company the rental was two hundred dollars per month for the first six months, and two hundred fifty dollars per month thereafter, payable only to Elk Refining Company; in that the lease from Elk Refining Company contained no provision relating to fire insurance as did the lease from plaintiff; in that the purposes for which the property was to be used by the respective lessees were not the same; in that the provisions in the respective leases relating to repairs were not the same; in that there was included in the lease from Elk Refining Company considerable personal property owned by Elk Refining Company; and in that the provisions of the respective leases differed materially in other respects. The instrument from Elk Refining Company to the partnership, exhibited in evidence, contained other provisions to the effect that the partnership could cancel the lease at the end of any year; that the lease could not be assigned without the written consent of Elk Refining Company; that in the event of default on the part of the partnership as to any covenant, including the covenant to pay rent, Elk Refining Company 'shall have the right to terminate this lease and re-enter and take possession' of the premises; that 'Bankruptcy or insolvency' of the partners 'shall immediately terminate this lease'; and that 'Lessor expressly reserves to itself all the rights of landlords under the statutes of West Virginia relating to landlords and tenants'. Plaintiff also replied generally to defendant's Special Plea No. 1, on which issue was joined.

The plaintiff demurred to Special Plea No. 1 of defendant, on the ground that the facts alleged in the plea, though true, would constitute no defense to the action based on the negligence of defendant. The court overruled the demurrer. The defendant demurred to the replication of plaintiff to Special Plea No. 1, which demurrer was sustained by the court.

The several instruments mentioned are exhibited as evidence. There existed no written instrument transferring any right, interest or title to defendant. There is also exhibited in evidence an instrument evidencing the payment of the sum representing the fire loss, referred to as a 'Loan...