Jarrett v. E. L. Harper & Son, Inc.

Decision Date07 June 1977
Docket NumberNo. 13726,13726
Citation235 S.E.2d 362,160 W.Va. 399
CourtWest Virginia Supreme Court
PartiesKenneth JARRETT and Fonda Jarrett v. E. L. HARPER & SON, INC., a corp.

Syllabus by the Court

1. Under Rule 68, W.Va.R.C.P., if a defendant's offer of judgment only partially satisfies the plaintiff's claim for damages and plaintiff either rejects the tender or accepts it as part payment only, the court must consider the offer withdrawn and submit the case to the jury where one has been demanded.

2. When realty is injured the owner may recover the cost of repairing it, plus his expenses stemming from the injury, including loss of use during the repair period. If the injury cannot be repaired or the cost of repair would exceed the property's market value, then the owner may recover its lost value, plus his expenses stemming from the injury including loss of use during the time he has been deprived of his property.

3. Annoyance and inconvenience can be considered as elements of proof in measuring damages for loss of use of real property.

Goodwin, Goodwin, Bryan & Lobert, Stephen P. Goodwin, Ripley, for appellants.

Earley, Bailey & Pfalzgraf, John S. Bailey, Jr., Parkersburg, for appellee.

HARSHBARGER, Justice:

Kenneth and Fonda Jarrett's water well on their Jackson County, West Virginia property was destroyed by Harper & Sons, Inc., a contractor building a sewer for a public service district. The Jarretts were without water for five weeks, when a new well was completed.

They sued Harper & Sons, Inc. for $5,000.00 to recover the new well's cost of $766.82, expenses for carrying water from a neighbor, and compensation for their inconveniences, hardship, annoyance, and discomfort. They demanded a jury trial.

Pretrial discovery by defendant revealed that in addition to the new well cost plaintiffs had other cash expenditures of $115.30 for laundromat expenses, buckets and other items.

Having discovered the out-of-pocket cash expenses by plaintiffs, defendant confessed judgment for $882.12. The court apparently thought that the amount for which defendant confessed judgment was all that plaintiffs were legally entitled to and entered a judgment order in favor of the plaintiffs for $882.12 plus costs. All this sans notice, motion, hearing, evidence and sans jury trial. The following paragraph appeared in the order:

"The Court then considered the other elements of alleged damage as represented to the Court by counsel for the Plaintiffs and denied the same inasmuch as they were not supported by adequate proof and entered judgment thereon for the Defendant."

Counsel for plaintiffs excepted.

The record discloses no explanation about how the trial judge arrived at his decision to force acceptance of this confession of judgment upon plaintiffs. Considering Rule 68, W.Va.R.C.P., and considering the jury trial demand the jury was in the box when the court abruptly terminated the proceeding we hold his action to be in error.

Rule 68, W.Va.R.C.P. provides:

(b) Payment into court. A party defending against a claim may pay into court by depositing with the clerk a sum of money on account of what is claimed, or by way of compensation or amends, and plead that he is not indebted to any greater amount to the party making the claim or that the party making the claim has not suffered greater damages. The party making the claim may (1) accept the tender and have judgment for his costs, (2) reject the tender, or (3) accept the tender as part payment only and proceed with his action on the sole issue of the amount of damages.

(c) Offer not accepted. An offer under subdivision . . . (b) above not accepted in full satisfaction shall be deemed withdrawn, i. e., shall not be disclosed to the jury, and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted, or accepted only as part payment, does not preclude a subsequent offer.

Clearly, under subsection (c) of Rule 68, when a defendant's offer of judgment only partially satisfies the plaintiff's claim for damages and plaintiff either rejects the tender or accepts it as part payment only, the court must consider the offer withdrawn and submit the case to the jury where as here one has been demanded.

The trial court's action cannot be reconciled with any West Virginia theory about damages to which real property owners are entitled, whose property is injured by the wrongful acts of others.

Our cases disclose that injuries to real property are classed either as temporary or permanent. And the measures of damages depend upon the classification.

They are temporary when the injury is intermittent and occasional, or the cause of the injury and its effects are capable of being remedied, removed, or abated. When the injury is temporary, the proper measure of damages is the cost of remedy, removal or abatement; compensation for loss of use or rent; and reimbursement for actual expenses caused by the injury. Cline v. Paramount Pacific, Inc., W.Va., 196 S.E.2d 87 (1973); O'Dell v. McKenzie, 150 W.Va. 346, 145 S.E.2d 388 (1965); Akers v. Ashland Oil and Refining Co., 139 W.Va. 682, 80 S.E.2d 884 (1954); McCabe v. City of Parkersburg, 138 W.Va. 830, 79 S.E.2d 87 (1953); Jones v. Pennsylvania Railroad, 138 W.Va. 191, 75 S.E.2d 103 (1953); Riddle v. Baltimore and Ohio Railroad Co., 137 W.Va. 733, 73 S.E.2d 793 (1952); Oresta v. Romano Brothers, 137 W.Va. 633, 73 S.E.2d 622 (1952), and McHenry v. City of Parkersburg, 66 W.Va. 533, 66 S.E. 750 (1909).

Injury to real property is permanent when it affects the property's value permanently. The proper measure of damages is the difference in market value of the property immediately before and immediately after the injury. Cline v. Paramount Pacific, Inc., supra; Severt v. Beckley Coals, Inc., 153 W.Va. 600, 170 S.E.2d 577 (1969); Malamphy v. Potomac Edison Company, 140 W.Va. 269, 83 S.E.2d 755 (1954); Akers v. Ashland Oil and Refining Co., supra.

But our Court has recognized the problems involved in determining into which classification a particular injury falls. Chief Justice Caplan wrote in Cline, 196 S.E.2d at 90:

"Whether the character of damage to property is permanent or temporary is, as reflected by the decisions of this and other courts, sometimes difficult to resolve."

Manley v. Brown, 90 W.Va. 564, 567, 111 S.E. 505, 506 (1922) involved damage to a stone wall. Plaintiff had it repaired and sued defendant for the cost of repairs. The Court said:

"The defendant insists, however, that the plaintiff was not entitled to recover the full amount paid by her for restoring the wall and repairing the damage; that the true measure of damages is the difference between the value of the plaintiff's property before the wall fell and immediately afterward. Ordinarily it is true that the measure of damages for an injury to real estate is the difference in the value of it immediately before and immediately after the injury is inflicted. But can it be said that the recovery of damages in this case is any more than another way of applying that rule? The injury inflicted as compared with the total value of the property was inconsiderable, and in such cases it has been held that the injured party may repair the damage done him and recover the cost of making such repairs. In other words, he may restore his property to the condition in which it was before the injury was inflicted, and the cost of doing this will represent the exact difference between the value of the property before and after the injury."

Judge Ritz thusly married the measures of damage simply by saying that the cost of repair was the difference in value before and after injury!

We believe a more manageable and meaningful meshing of the measures is possible simply by eliminating the temporary and permanent classifications. The result would be similar to the rule about damage to personal property. When realty is injured the owner may recover the cost of repairing it plus his expenses stemming from the injury including loss of use during the repair period. If the injury cannot be repaired or the cost of repair would exceed the property's market value, then the owner may recover the money equivalent of its lost value plus his expenses resulting from the injury including loss of use during the time he has been deprived of his property.

Our cases that differentiate between measures of damages for injury to real property on the "temporary" or "permanent" bases are overruled on that point. *

An explanation of the rationale in allowing expenses where the injury cannot be repaired can be made, using this case as an example. Suppose the Jarretts were not successful in getting water from the new well they...

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