Brown v. DeMarie

• Decision Date: 16 March 1948
• Docket Number: (No. 9985),(No. 9984)
• Citation: 131 W.Va. 264
• Court: West Virginia Supreme Court
• Parties: Fay H. Brown v. Anthony DeMarie, et al.Fay H. Brown v. Anthony DeMarie, et al.

131 W.Va. 264

Fay H. Brown

v.Anthony DeMarie, et al.

Fay H. Brown

v.Anthony DeMarie, et al.

(No. 9984)

(No. 9985)

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1948.

Decided March 16, 1948.

1. Landlord and Tenant

A landlord and his tenant owe no joint duty of care to an invitee or licensee of the tenant on which can be predicated joint liability for injuries occurring to the invitee or licensee upon an elevator, used in common with other tenants and at the time of the injury in the possession and under the exclusive control of the landlord.

2. Common Carrier

The operator of an elevator is not a common carrier requiring, per se, that he exercise the highest degree of care toward a passenger thereon.

3. Landlord and Tenant

When it appears that an elevator merely determines the specific location at which a person is injured upon the premises of another, and the injury was not caused by reason of the mechanical or structural condition of the elevator and its appurtenances, nor by reason of the manner and method of the operation thereof, the duty of care to which the injured person is entitled from the owner and operator of the elevator depends upon whether such injured person was a trespasser, licensee or invitee.

4. Landlord and Tenant

A tenant's invitee or licensee, injured upon an elevator used in common with other tenants and in the possession and under the exclusive control of the landlord, is entitled to the exercise of the same degree of care from the landlord as otherwise he would have been entitled from the tenant.

5. Landlord and Tenant

The duty a property owner owes to an invitee is co-extensive with, and limited by the invitation; and where the invitation has been revoked, and the invitee remains upon the premises, he will be regarded as a licensee only.

Error to Circuit Court, Marion County.

Action of trespass on the case by Fay H. Brown against Anthony DeMarie and others to recover for personal injuries. Verdict and judgment for plaintiff, and defendants bring error.

Judgment reversed; verdict set aside; new trial awarded.

Steptoe & Johnson. Oscar J. Andre, and Kingsley R. Smith, for plaintiff in error, Anthony DeMarie.

C. Brooks Deveny, for plaintiffs in error, William D. Hostutler, et al.

A. Blake Billingslea, for defendant in error.

Lovins, Judge:

Separate writs of error were granted to Anthony De Marie and to William D. Hostutler and John Bilotta, partners doing business as The Sky Club, to a judgment of the Circuit Court of Marion County, rendered on a verdict of the jury assessing damages for plaintiff, Fay H. Brown, in the amount of $7,000.00, in an action of trespass on the case instituted by Brown against the defendants jointly. The facts on which the action was instituted are as follows:

DeMarie was the owner of a four-story building located in Fairmont and known as the Odd Fellows Building. Hostutler and Bilotta were tenants in the building, having a lease covering the fourth floor thereof, and were partners in the operation therein of a night club known as "The Sky Club". DeMarie furnished elevator service, and personnel for the operation thereof, for all the tenants of the building.

Shortly after midnight on March 29, 1946, the plaintiff, accompanied by James Malloy, entered the ground floor of defendant's building, went to the elevator and was carried to the fourth floor. Although the evidence is not clear as to the physical disposition of the rooms located on the fourth floor, it appears that upon leaving the elevator one enters a "foyer" or hallway, from which entrance may be had to certain rest rooms. On the opposite side of such hallway is a large double door opening into a small room. In the small room, on the side opposite the double door leading to the hallway, is another large double door which gives access to a larger room, known as "The Sky Club".

On the night in question a desk was located either in the doorway between the hallway and small room, or just within the hallway, at which admission tickets to the club could be purchased.

Upon their arrival in the hallway, plaintiff and Malloy attempted to obtain admission to the club. Such admission was refused them, and the reason therefor is not clear. Plaintiff states that he does not know why he was refused admission, but defendants, Hostutler and Bilotta, assert that the reason therefor was that plaintiff was intoxicated.

In any event plaintiff testified that he and Malloy remained in the hallway for a period of ten to fifteen minutes, when he heard a commotion coming from the club room. When he looked in that direction, he saw two men, later identified as Van Pelt and Deem, who had been patrons of The Sky Club, leaving the club room and entering the small room. He describes the action of these men as being "like a couple of wild bulls busting their way through". When plaintiff noticed these men, he suggested to Malloy that they leave, to which Malloy assented. The two immediately walked across the hallway to the elevator, which was then stopped on the fourth floor, with the door thereto open. Plaintiff states that as he entered the elevator, he told the elevator operator, a colored girl, not to permit the other two men, Deem and Van Pelt, to enter the elevator, adding, however, that he did not "see how she could prevent" their entrance. It is not clear whether Deem and Van Pelt followed immediately after plaintiff in entering the elevator, or whether there was an interval of about five or six seconds. In either event, Deem and Van Pelt did enter the elevator and immediately after the elevator started its descent, either Van Pelt or Deem assaulted the plaintiff, rendering him unconscious.

Malloy testified substantially in the same manner as did plaintiff, but the trial court restricted his testimony with respect to these occurrences as being evidence against the defendant, DeMarie, only. Malloy further stated that after the elevator had descended a few feet, it went back to the fourth floor; its doors opened; and he got out. Thereafter the elevator descended to a place between the first and second floors, where it remained until the police arrived.

It is not disputed that DeMarie, who heard of the commotion on the elevator, but was not a witness to any of the events prior thereto, managed to stop the elevator between the first and second floor, by disconnecting the electric current, after the assault had ended. Having done so, he summoned the aid of police officers, who extricated plaintiff, Van Pelt and Deem from the elevator cage.

As a result of the assault, plaintiff suffered a broken nose; a fracture of the top of the spinous process at the back of the seventh cervical vertebra; the loss of one front tooth; the loss of a portion of a jaw tooth; at least one of his eyes was blackened; and he received various and sundry cuts and bruises about his body. Further details of plaintiff's injuries, the extent and duration thereof, will not be stated for reasons hereinafter appearing.

At the trial defendants adduced testimony to the effect that plaintiff and Malloy were intoxicated at the time of their arrival at The Sky Club, and were refused admission thereto for that reason. It was further stated that plaintiff, without provocation, assaulted Van Pelt in the hallway before obtaining entrance to the elevator; that plaintiff, alone, followed Van Pelt and Deem into the elevator, at which time the altercation between the three continued. The elevator operator testified that shortly after she had started the descent of the elevator, one of the three men struck her in the face, whereupon she returned to the fourth floor and left the elevator. We do not, however, consider the defendants' testimony in these respects, for the reason that it is contradictory of the testimony of plaintiff, and of witnesses testifying in his behalf, in whose favor the jury has returned its verdict. We consider only such facts as are not disputed, and as to those in dispute we consider only the proper versions thereof, and the proper inferences arising therefrom, which are most favorable to plaintiff. Adkins v. Transit Co., 127 W. Va. 131, 31 S. E. 2d 775; Divita v. Trucking Co., 129 W. Va. 267, 40 S. E. 2d 324.

When the plaintiff had closed his case in chief, and again at the conclusion of all the evidence, motions were made in behalf of DeMarie and the other defendants for directed verdicts, which were overruled. The defendants, Hostutler and Bilotta, offered a peremptory instruction, which was refused. After the verdict had been returned motions were made by defendants to set the same aside and grant them a new trial, which motions were likewise overruled.

Plaintiff offered fourteen instructions, eight of which were given as offered; two others, having been amended by the Court without objections, were given; and four were refused. Defendant DeMarie offered twelve instructions, three of which were given, the remaining nine being refused. Defendants Hostutler and Bilotta offered twentythree instructions, nine of which were given and fourteen of which were refused. The giving, refusing and amending of all the instructions offered were consistent with three legal theories on which the trial court acted: (1) that liability of all three defendants was joint as well as several; (2) that all three defendants owed to plaintiff the highest degree of care; and (3) that there was no evidence of permanent injury to plaintiff. Since a discussion of the correctness of these three legal theories will deter- mine all assignments of error, including those arising from the actions of the trial court in overruling motions for directed verdicts and motions to set aside the verdict, this opinion is limited to a discussion of those theories.

The plaintiff, in his original and amended declarations, made allegations to the effect that all three defendants were the joint owners and operators of the business known as The Sky Club, as well as the elevator giving...