Cowan v. One Hour Valet, Inc.

• Decision Date: 28 November 1967
• Docket Number: No. 12626,12626
• Citation: 151 W.Va. 941,157 S.E.2d 843
• Court: West Virginia Supreme Court
• Parties: , 28 A.L.R.3d 1333 Leslie H. COWAN v. ONE HOUR VALET, INC., a Corp., Paul Sigesmund et al., etc.

Page 843

157 S.E.2d 843

151 W.Va. 941, 28 A.L.R.3d 1333

Leslie H. COWAN v. ONE HOUR VALET, INC., a Corp., Paul Sigesmund et al., etc.

No. 12626.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1967.

Decided Nov. 28, 1967.

Syllabus by the Court

1. The general rule with regard to a jury verdict for damages in personal injury cases is that it will not be set aside by an appellate court as excessive unless its size indicates as a matter of law that there was passion, prejudice, partiality, mistake, or lack of due consideration in connection therewith.

2. A mere difference of opinion between the court and the trial jury concerning the proper amount of recovery will not justify either a trial court or an appellate court in setting aside the verdict on the ground of inadequacy or excessiveness.

3. The general rule is that a landlord or lessor is not liable for personal injury sustained on the leased premises, by reason of a defective condition thereof arising after the demise, by the tenant or those entering on the premises under the tenant's title.

4. Ordinarily, an invitee of a lessee or tenant stands in the same shoes as the tenant and the lessor is not liable for injuries suffered by an invitee of the tenant for defective condition of the premises, unless he would have been liable to the tenant.

5. After the premises are leased to the lessee the landlord is not bound to keep the premises in repair unless he contracts to do so and a tenant assumes the risk relative to the condition of the premises after he takes possession thereof.

6. There are exceptions to the general rule that a landlord or lessor is not liable to the lessee or his invitees for injuries received on leased premises, one of which is the 'common use' situation where the tenants or invitees of tenants are injured on part of the premises which can be used in common by tenants or by the public, and where the landlord retains control of certain places or things in connection with the leased premises.

7. A landlord or lessor may be held liable to third parties where he has knowledge or should have known of a defective condition at the expiration of a lease and does not disclose or repair such condition before he renews the lease or rents the premises to a new tenant.

8. An employee of a public utility charged with the duty of inspecting electrical equipment and checking electric meters on leased premises has the status of an invitee because he enters the premises in the performance of his duties whether they be to lessor or lessee. If such inspections are for the benefit of the lessor as well as the lessee he becomes the invitee of the lessor as well as the lessee, and the presence of such person on the premises at the time he sustains an injury was for a common purpose to both the lessee and lessor which may render both liable for such injury if they knew or should have known of the dangerous condition and did not disclose it to such person.

Schmidt, Laas, Schrader & Miller, Thomas B. Miller, Wheeling, for appellant.

Bachmann, Hess, Bachmann & Garden, John B. Garden, Lester C. Hess, Jr., Wheeling, for appellees.

BERRY, Judge.

This action was instituted in the Circuit Court of Ohio County by the appellant, Leslie H. Cowan, as plaintiff below on May 29, 1964, against Paul Sigesmund and Anna Sigesmund and One Hour Valet, Inc., and later amended to include Marie Hirsch, doing business as One Hour Valet Cleaners, defendants below, for damages as a result of a personal injury suffered by the said Leslie H. Cowan when a floor in a building owned by the defendants Paul and Anna Sigesmund, and leased by the defendant Marie Hirsch, doing business as the One Hour Valet Cleaners, collapsed. The jury returned a verdict July 14, 1965, in the amount of $35,000 against all of the defendants and judgment was entered thereon. The defendant, Marie Hirsch, did not make a motion for a new trial and the judgment is final as to her. A motion for a directed verdict and a motion for a new trial were timely perfected on behalf of the defendants Paul and Anna Sigesmund assigning errors on the question of liability of the defendants Paul and Anna Sigesmund, the lessors, and on the issue that the jury's verdict was excessive. The motion for a directed verdict was overruled but the motion for a new trial on the grounds of excessiveness of the verdict was sustained by order entered by the trial court on February 21, 1966, because the trial court was of the opinion that the evidence of plaintiff's disability was not sufficient to warrant the amount of the verdict, but the order specifically stated that the verdict was not the result of prejudice, partiality or corruption. On application to this Court by the plaintiff, Leslie H. Cowan, an appeal was granted November 14, 1966, after which the defendants cross assigned error on the part of the trial court in failing to grant their motion for a directed verdict, and in failing to grant a new trial on the grounds that the evidence failed to show any actionable negligence on their part to the plaintiff. The case was submitted for decision on arguments and briefs at the September Regular Term, 1967, of this Court.

The plaintiff was employed by the Wheeling Electric Company as an inspector and tester of electric equipment and meters, and he also carried an authorization from the Public Service Commission of West Virginia in connection with the testing of electric meters. On November 1, 1962 he entered the premises in question in connection with his duties. He went through the front room in which some of the cleaning was done and to which the public had access as customers of the establishment and then proceeded to the back room where other cleaning processes were carried on and the larger equipment was housed, such as a boiler, where the public was not allowed. When he entered the back room he had to go to his right in order to reach the electrical distribution panel, or meter board, where the incoming wires, meters and switches for the various circuits were located on the south wall in the corner of the room. The plaintiff was charged with the duties of making periodic inspections such as checking voltages, seeing that the wiring was correct with no loose connections, that everything functioned properly and that the kilowatt hour meter was accurate. He also replaced the demand meter so that the removed one could be calibrated at the company workshop. He was authorized to test and inspect the electrical equipment and in connection with these duties he had inspected and checked the so-called hot wires with regard to grounding and such duties were performed in order to prevent the danger of burning of the building he inspected.

After the plaintiff first went in the back room to observe the type of electrical distribution panel he returned to his truck to obtain his tool kit. He said he did not notice anything unusual in connection with the floor on the first trip but that when he came back with his tool kit as soon as he entered the back room and turned to his right he fell through the floor with one foot or leg on each side of the joist landing on his spinal tail-bone, known to doctors as the coccyx. His kit fell through the space beneath the floor. After extricating himself from the hole through which he fell he recovered his equipment by going to the basement and then returned to the office of his employer, the Wheeling Electric Company, where he reported the accident. Some employees of the Company later on the same day or the day after inspected the scene of the accident and took pictures of the hole in the floor. The testimony of these witnesses indicated that at the place the floor fell it was observed that remnants of tile and floor boards appeared to be water soaked and rotten.

There is considerable conflict in the evidence on the part of Marie Hirsch and the plaintiff with regard to the condition of the floor at the time of the accident. Mrs. Hirsch was advised in October, 1962, by a boiler installer that she needed a new steam boiler and that the floor might have to be strengthened where it was to be placed. Witnesses for Mrs. Hirsch testified that just a few days before the accident they tore up the floor in the back room and started reenforcing it and replacing it with a new one in order to accommodate the new and heavier boiler which was necessary for the cleaning process and that when the plaintiff came to the building there was only a temporary floor in the center of the back room consisting of one or more boards across joists over which he would have to traverse to reach the area next to the electrical panel, although the area by the panel itself was still floored, and that he proceeded to go into the back room without properly identifying himself and over the objection of Mrs. Hirsch and her husband who informed him the floor was torn up. However, the plaintiff testified that he properly identified himself, entered the back room with the consent of the girl in the front room, and that when he entered the back room he observed no work whatsoever being done but that the floor looked dark; that when he fell through the floor the light was somewhat obscured, and although the floor looked dark, it appeared to be all right otherwise.

The plaintiff's testimony was substantiated by Howard Johnson, the man who installed the boiler and who testified that between the time he first visited the establishment to negotiate the sale of the boiler, which was about the middle of January, 1963, and the time it was installed at the end of the month someone had refloored the room. Also, the evidence of the employees of the Wheeling Electric Company when they examined the premises after the accident was that there was no repairing of the floor being done.

After the accident the plaintiff returned to the office of his employer and was advised to go to the Ohio Valley General Hospital where x-rays...