Jones v. Two Rivers Ford, Inc., 15404

• Decision Date: 10 March 1983
• Docket Number: No. 15404,15404
• Citation: 301 S.E.2d 192,171 W.Va. 561
• Court: West Virginia Supreme Court
• Parties: E.B. JONES v. TWO RIVERS FORD, INC., etc., et al.

Page 192

301 S.E.2d 192

171 W.Va. 561

E.B. JONES v. TWO RIVERS FORD, INC., etc., et al.

No. 15404.

Supreme Court of Appeals of West Virginia.

March 10, 1983.

Syllabus by the Court

1. W.Va.Code, 36-4-13, has altered the common law to the extent that a covenant by a lessee to repair will not automatically make him responsible to repair or rebuild the leased premises which are damaged or destroyed by fire unless such damage is a result of his negligence.

2. "The mere occurrence of a fire with resultant damages does not, as a general rule, raise an inference of negligence, and the doctrine of res ipsa loquitur is ordinarily not applicable in such cases." Syllabus Point 1, Davidson's, Inc. v. Scott, 149 W.Va. 470, 140 S.E.2d 807 (1965).

3. "The violation of a municipal ordinance creates a prima facie case of negligence and the determination as to whether there was in fact a violation and whether the violation was the proximate cause of the injury is within the province of the jury." Syllabus Point 3, Simmons v. City of Bluefield, 159 W.Va. 451, 225 S.E.2d 202, 88 A.L.R.3d 105 (1975).

4. "Where the evidence does not with certainty disclose the amount which plaintiff is entitled to recover, but such amount is left in doubt, it is error for the trial court to direct a verdict for a specific sum." Syllabus Point 2, Fayetteville Building & Loan Ass'n v. Mutual Fire Ins. Co. of West Virginia, 105 W.Va. 147, 141 S.E. 634 (1928).

Musgrave, Musgrave & Casey, Raymond G. Musgrave and James M. Casey, Point Pleasant, for appellants.

Huddleston, Bolen, Beatty, Porter & Copen, R. Kemp Morton, Andrew S. Zettle, Huntington, Shaw & Stein and R. Michael Shaw, Point Pleasant, for appellee.

MILLER, Justice:

The defendants, Two Rivers Ford, Inc., et al., ¹ appeal from the final order of the Circuit Court of Mason County denying their motion to set aside the verdict and grant a new trial. The main errors asserted are that the trial court should not have directed a verdict on liability against the defendants and should not have set the range of damages recoverable.

The defendants were the tenants of a building located in Point Pleasant under a written lease, which contained certain clauses in regard to upkeep and repair. ² The building was subsequently totally destroyed by a fire. The plaintiffs E.B. and Nedra Jones were the owners and landlords and brought suit alleging that the fire was a result of the tenants' negligence.

At trial the plaintiffs' expert witness, E.L. Roush, who was an assistant State fire marshal, gave his opinion as to the cause of the fire. He believed that the boiler in the basement of the building overheated. This caused the temperature in a flue pipe that ran from the boiler to the outside of the building to rise to the level of 400? F. The heat from the flue pipe in turn ignited some dried vines which had grown over the outside wall of the building and around the flue pipe. The plaintiffs contended that the defendants violated an ordinance of the City of Point Pleasant relating to accumulation of waste material by permitting the vines to grow on the outside wall. ³

The defendants attempted to counter the plaintiffs' theory through the testimony of John Smith, a local heating and plumbing contractor, who had serviced the boiler prior to the fire. He testified that approximately one week before the fire he had inspected the boiler, did some repair work and put a new water feeder on it. He said that he found a crack in one section of a steam line inside the boiler but was unable to repair it since he had to order a new part. He felt that the boiler could still be operated, but lowered the gas valve and advised that the thermostat should be lowered. Smith further testified that the temperature of the flue pipe could never rise to a combustible level and, therefore, the vines could not be ignited by the flue pipe.

At the conclusion of all the evidence the trial court granted the plaintiffs' motion for a directed verdict in regard to the defendants' liability on the basis that the vines on the outside of the building which had grown into and around the flue pipe were in violation of the city ordinance and that this constituted prima facie evidence of negligence.

The critical point is that there was a dispute as to what caused the vines to ignite. Both parties agree that the lease's covenants to repair do not in view of W.Va.Code, 36-4-13, ⁴ make the defendants responsible for a fire loss. In McKenzie v. The Western Greenbrier Bank, 146 W.Va. 971, 980, 124 S.E.2d 234, 239 (1962), we acknowledged that this statute had changed the common law:

"At common law where a covenant to repair was contained in the lease and the building was destroyed by some fire or casualty the lessee was responsible for repairs thereto, whether he was at fault or not. However, the common law rule has been changed in both Virginia and West Virginia, and the lessee is now only liable for damages under such conditions when it is shown that the damage is caused by his fault or negligence....

"This statute [W.Va.Code, 36-4-13] not only applies to damage by fire, but damage caused in any other manner, and not only applies to damage to the whole, but to a part thereof. Therefore, it applies to any damage in connection with a clause in a lease to leave the premises in as good repair or condition as when leased."

Thus, it is clear that W.Va.Code, 36-4-13, has altered the common law to the extent that a covenant by a lessee to repair will not automatically make him responsible to repair or rebuild the leased premises which are damaged or destroyed by fire unless such damage is a result of his negligence. This same point was reaffirmed in Davidson's, Inc. v. Scott, 149 W.Va. 470, 140 S.E.2d 807 (1965), where we stated in Syllabus Point 1:

"The mere occurrence of a fire with resultant damages does not, as a general rule, raise an inference of negligence, and the doctrine of res ipsa loquitur is ordinarily not applicable in such cases."

Neither party disagrees that the plaintiffs' case by virtue of Roush's testimony established the flue pipe as the source of ignition and this coupled with the ordinance would carry the case to the jury as to the defendants' negligence. However, the assistant fire marshal's testimony as to the source of ignition was controverted by the defendants' Witness Smith who testified the flue pipe could not attain a combustible temperature and could not have ignited the vines. Thus, a clear issue of fact was created as to whether the source of ignition was a result of any negligence on the part of the defendants.

The plaintiffs rely on Stone Mountain Industries, Inc. v. Bennett, 112 Ga.App. 466, 145 S.E.2d 591 (1965), a case involving a similar ordinance. The tenant, a furniture manufacturer, utilized a highly inflammable varnish which was exhausted from the building and coated the weeds that were growing adjacent to the building. The weeds subsequently ignited, and the court concluded that the inflammable coating of the weeds created a dangerous condition. It utilized this quotation from 38 Am.Jur. Negligence § 73, at 731 (1941): "One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third person may have contributed to the result." The only issue before the court in Stone Mountain Industries, Inc. v. Bennett was whether the plaintiff's complaint stated a sufficient cause of action to withstand the defendant's demurrer and the court concluded that it was sufficient.

We do not believe that the existence of the vines on the building in the present case created a dangerous condition in the same sense. A more analogous case is Precisionware, Inc. v. Madison County Tobacco Ware, Inc., 411 F.2d 42, 47 (5th Cir.1969), where the tenant argued that the landlord violated a city ordinance in regard to fire walls and that this was the proximate cause of the fire loss and the court concluded: "Whether the landlord Madison's violations of the City Code of Madison in failing to construct the proper fire walls was negligence which proximately caused the destruction of the warehouse was a question for the jury."

In Simmons v. City of Bluefield, 159 W.Va. 451, 225 S.E.2d 202, 88 A.L.R.3d 105 (1975), a plaintiff who had been burned by a fire started by a city employee claimed that the fire was unattended in violation of a municipal ordinance, and in Syllabus Point 3 we set this rule:

"The violation of a municipal ordinance creates a prima facie case of negligence and the determination as to whether there was in fact a violation and whether the violation was the proximate cause of the injury is within the province of the jury."

See also Barniak v. Grossman, 141 W.Va. 760, 93 S.E.2d 49 (1956); Somerville v. Dellosa, 133 W.Va. 435, 56 S.E.2d 756 (1949); Rich v. Rosenshine, 131 W.Va. 30, 45 S.E.2d 499 (1947).

Of more direct bearing is Cross v. Noland, 156 W.Va. 1, 190 S.E.2d 18 (1972), where the plaintiff claimed that she was entitled to a directed verdict based on the fact that...