Hatten v. Mason Realty Co.

Decision Date17 March 1964
Docket NumberNo. 12253,12253
Citation148 W.Va. 380,135 S.E.2d 236
PartiesDon F. HATTEN, Administrator, etc. v. MASON REALTY COMPANY et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. 'An owner or proprietor of a dangerous instrumentality must exercise reasonable care to avoid injury to a trespassing child whose presence at the time and place of danger was either known to the proprietor or might reasonably have been anticipated.' Point 1 Syllabus, Adams, Admr. v. Virginia Gasoline & Oil Company, 109 W.Va. 631 [156 S.E. 63].

2. An artificial pool of water may constitute a 'dangerous instrumentality' if there exists in connection with it something which constitutes a hidden danger or trap.

3. The construction or installation of a sewer line by a municipality within the corporate boundaries of the municipality constitutes the performance of a proprietary function, as distinguished from a governmental function; and if, in connection with such construction or installation the death of a person results proximately from the negligence of the officers, agents or employees of the municipality, an action for wrongful death may be maintained against it.

4. Where, at the direction of the mayor of a municipal corporation and under the supervision of its street commissioner, a sewer line is constructed or installed within the city by its agents and employees, and paid for by the city; and where such construction or installation is subsequently ratified by the action of the city in integrating the sewer line into the city's general sewer system and in charging homeowners for the privilege of connecting with and using the sewer line, the municipal corporation will not be permitted to assert that the construction or installation of the sewer line was an ultra vires act or one performed without lawful authority.

5. Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.

6. 'A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment.' Point 6 Syllabus, Aetna Casualty & Surety Company v. Federal Insurance Company of New York, W.Va. .

Stepton & Johnson, Carl F. Stucky, Jr., Edward W. Eardley, Charleston, Sommerville, Hyer & Littlepage, Samuel D. Littlepage, Point Pleasant, for appellant.

William H. Rardin, Point Pleasant, Jackson, Kelly, Holt & O'Farrell, David D. Johnson, Charleston, for appellees.


This case involves an action for wrongful death instituted in the Circuit Court of Mason County, arising from the drowning of an eight-year old boy in a pool of water. The pool of water was created in connection with the installation of a sewer line in a residential development area within the City of Point Pleasant. The area was being developed for residential purposes by Mason Realty Company, a corporation. The sewer line was being installed by the employees of the municipality and at its expense.

The defendants, Mason Realty Company and the City of Point Pleasant, made separate motions for summary judgment based on affidavits, interrogatories with answers thereto, depositions, and the pleadings. By an order entered on September 14, 1962, the court sustained the motion of the municipality and it was thereby dismissed from the action. By an order entered on September 18, 1962, the court sustained the motion of the Mason Realty Company and it was thereby dismissed from the action. The plaintiff has appealed to this Court from the final judgment of the circuit court which is embodied in the two orders.

The trial court did not make any findings of fact, did not file any written opinion and did not by court order give any hint whatsoever concerning the basis of its rulings. The motions do not disclose upon what ground or grounds they were based. We are, therefore, deprived of the benefit of the trial court's reasoning and of any knowledge of the legal principle or principles upon which the court's rulings were based.

Mason Realty Company, which will be referred to in this opinion as Mason, is the owner of an area known as Meadowbrook Addition within the City of Point Pleasant. A westerly portion of this area was laid off in lots and a plat of the plan of Mason for its development as a residential are was recorded on June 1, 1956, in the office of the Clerk of the County Court of Mason County. This area, with its streets and sewer lines, has been fully accepted by the municipality. The sewer lines therein have been integrated and made a part of the sewer system of the municipality. Lots for the construction of homes in this development area have been sold to various persons, including the plaintiff.

On February 16, 1961, Mason filed in the office of the Clerk of the County Court of Mason County a plat for the development of the remaining or easterly portion of Meadowbrook Addition. On April 5, 1961, Mason wrote a letter to the mayor and councilmen as follows:

'Point Pleasant, West Virginia

April 5, 1961

'Honorable B. W. Krodel and Members of the City Council

Point Pleasant, West Virginia


I am sure you are well aware of the great number of homes that have been constructed and are now occupied in the Meadowbrook Addition to the City of Point Pleasant. We now want to develop the remainder of this addition by paving the streets and putting in the utilities in order that we may continue the sale of lots.

'We are now requesting that the City extend the sewer line on Meadowbrook Drive and Cedar Street, which will complete the sewerage system in this addition.

'We want to take this opportunity of thanking you for your splendid cooperation in the past in assisting us in developing this fine addition to our City.

'Yours very truly,



It does not appear from the record that there were any oral negotiations or that there was an express contract between Mason and the municipality in relation to the second development project. It does appear, however, that the proposal embraced in the letter was accepted and acted upon by officials and other representatives of the municipality. Hoyt Jividen testified that he was instructed by Mayor B. W. Krodel to install the sewer line and to supervise its installation. Jividen accordingly did so. All the work in connection with the actual installation of the sewer line was performed by employees of the city. All charges for labor and materials were paid by it. The streets shown on the amended plat, embracing the second development area, were formally accepted by the city council in regular meeting held on November 13, 1961. The sewer lines of the new development area were connected with and made a part of the municipal sewer system. Since that time, each homeowner in the area has been required by the city to pay the usual sewer fees. Mason, on the other hand, complied with the proposal, offer or statement made by it in its letter, by paving the streets embraced in the new development area. In answer to an interrogatory, Mason stated that it obtained no authority from anybody to pave the streets. In an answer to an interrogatory, the city stated that it had not given authority to Mason to pave the streets. We note that, in the final paragraph of the letter, Mason thanked the municipal officers for their 'splendid cooperation' in the past, in 'assisting us in developing this fine addition to our City.' This tends to indicate that Mason and the municipal officers were collaborating in a mutually satisfactory manner in developing the area for residental purposes; and that the project was not wholly a unilateral undertaking by Mason. Mason's letter stated that it planned to pave the streets to facilitate the development for residental purposes in order that it might 'continue the sale of lots.' It is reasonable to conclude that the paving was not advisable or even possible until after the sewer line was laid by the city.

Less than two months after the date of the letter, the city officers and employees proceeded with the project of extending the sewer line. At the terminus of the sewer line, a hole, approximately ten feet deep and approximately seven feet in diameter, was dug in the ground for the purpose of installing a manhole. The manhole was planned for the purpose of enabling men to get down to the level of the sewer line in order to service it.

On Thursday, June 8, 1961, workmen on the sewer line project quit work for the day at 4:30 p. m. That evening and night a heavy rain fell. Consequently, work on the project was not resumed on Friday and for that or some other reason work was not resumed on Saturday. As a result of the rainfall and water from a spring in the area, muddy water completely filled the hole; and also filled a shallow depression in the ground around the ten-foot hole. At about 11 o'clock on the forenoon of Saturday, June 10, 1961, while Don H. Hatten, II was wading with other children in the shallow, muddy water, he waded or stepped into the ten-foot hole and was drowned.

On Thurday evening, one or more employees of the city had placed a 'barricade' about the hole. This consisted of steel drums placed on end on the ground about fifteen feet apart with boards placed on the top of the drums from one to another. The exact number of steel drums and boards thus placed does not clearly appear. In any event, they were placed in a semicircular manner, but did not completely encircle the depression surrounding the hole. When asked to state the purpose of the barricade, Jividen, the street commissioner, stated, 'We didn't want to leave it open so that someone could wreck or drive in...

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