Kesner v. Trenton

• Citation: 216 S.E.2d 880,158 W.Va. 997
• Decision Date: 15 July 1975
• Docket Number: No. 13296,13296
• Court: Supreme Court of West Virginia
• Parties: , 86 A.L.R.3d 1009 Gleason C. KESNER, Administrator of the Estate of Dianna Lee Kesner, Deceased v. D. H. TRENTON, etc., et al. Gleason C. KESNER, Administrator of the Estate of Carol Ann Kesner, Deceased v. D. H. TRENTON, etc., et al.

Page 880

216 S.E.2d 880

158 W.Va. 997, 86 A.L.R.3d 1009

Gleason C. KESNER, Administrator of the Estate of Dianna Lee

Kesner, Deceased v. D. H. TRENTON, etc., et al.

Gleason C. KESNER, Administrator of the Estate of Carol Ann

Kesner, Deceased v. D. H. TRENTON, etc., et al.

No. 13296.

Supreme Court of Appeals of West Virginia.

July 15, 1975.

Syllabus by the Court

1. Where a jury finds a defendant liable in a wrongful death action, it has absolute discretion, without regard to proof of actual damages, pecuniary loss and the like, to make any award it deems 'fair and just, not exceeding ten thousand dollars,' and the trial court's submission to the jury of a verdict form which embodies the directions of W.Va.Code 1931, 55--7--6, as amended, is not error.

2. W.Va.Code 1931, 19--25--1 Et seq., as amended, does not limit the common-law liability of a landowner, or of a lessee in control of the premises, to those who enter the premises as business invitees and suffer injury thereon.

3. 'An invitation to enter upon premises, within the meaning of the law of negligence, will be implied where entry thereon at the instance of the owner is in connection with his business or for his benefit.' Syllabus point 2., Smith v. Sunday Creek Co., 74 W.Va. 606, 82 S.E. 608 (1914).

4. 'The judgment of a trial court in setting aside a verdict and awarding a new trial is entitled to peculiar weight and its action in this respect will not be disturbed on appeal unless plainly unwarranted.' Syllabus point 3., Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968).

5. The test in reviewing a judgment setting aside a jury verdict and awarding a new trial is whether the trial court's discretion in supervising verdicts, so as to prevent a miscarriage of justice, has been abused.

6. 'In an action for death by wrongful act the jury is the arbiter of the amount of damage, and its finding will not be set aside for the reason that the recovery is inadequate, unless it can be seen that the jury was misled or was motivated by passion, prejudice, partiality or corruption.' Syllabus point 2., Legg v. Jones, 126 W.Va. 757, 30 S.E.2d 76 (1944).

7. The meagerness of a verdict in a wrongful death action is not sufficient reason to set it aside; to be inadequate At law, a verdict must have resulted from error in the case or from jurors' misconduct.

8. '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.' Syllabus point 2., Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).

9. It is prejudicial error to charge a jury on the theory of unavoidable accident where actionable negligence of the alleged tort-feasor is supported by the evidence.

10. A verdict of a jury which is assailed as inadequate at law is properly set aside by the trial court where that court erroneously instructed the jury on a theory not supported by the evidence and thus may have misled the jury or may have given it a mistaken understanding of the law applicable to facts of the case.

John M. Hamilton, John G. VanMeter, Petersburg, Ralph J. Bean, Moorefield, Catsonis & Linkous, Leo Catsonis, Charleston, for appellants.

James E. Ansel, Moorefield, for appellees.

HADEN, II, Chief Justice:

This is an appeal from a final order of the Circuit Court of Grant County which set aside a jury verdict and awarded plaintiff a new trial in these two consolidated wrongful death actions on the ground that the verdicts rendered in favor of the plaintiff for funeral expenses only were inadequate.

Plaintiff's decedents, Dianna and Carol Kesner, drowned at VEPCO lake in Grant County, West Virginia, on July 7, 1968. On that Sunday Gleason Kesner, the plaintiff administrator, took his family to the lake for the purpose of a family outing. The defendants below and appellants here operated a boating marina on the lake. As lessees of Virginia Electric Power Company, they offered at their establishment rental spaces for private boats, camping spots with electricity, water and toilet facilities and boat sales and rentals to the general public. Coincident with these commercial enterprises, the marina operation also provided, without charge to the general public, areas for picnicking and swimming in the waters adjacent to the defendants' boat dock and marina.

The Kesner family visited the lake so that, among other things, Mr. Kesner, the plaintiff, could rent a boat for the purpose of going to the mouth of Stoney River for fishing. Upon arrival at the marina area, the family had a picnic lunch. The Kesner girls, in the company of their sisters and two friends, decided to go wading in the lake within twenty minutes to one-half hour after they had eaten lunch. At approximately the same time, their father was on the boat dock awaiting his turn to rent a boat from the operator of the marina. Shortly after the girls entered the water they slipped or stepped into a culvert or excavation which had been dug from the lake bottom for the purpose of channeling water to a run-off culvert at the dam site on the lake. This culvert was approximately ten feet deep and dropped off precipitously from an area which was otherwise only 'knee deep.' Evidence disclosed that the plaintiff's decedents were fifteen and sixteen years old, were less than five feet in height and were non-swimmers. Neither they nor anyone in the Kesner party was aware of the existence or location of the hidden excavation or culvert. There were no marker buoys, signs or other indicators alluding to the existence of the culvert or to the hazards of swimming in the area; however, defendant Arthur Trenton revealed that he had roped-off the area previously in order to restrict swimmers or waders from proceeding into the area of potential danger. Apparently, boats using the area had cut or destroyed the nylon rope one or two weeks prior to the accident, but Trenton had not replaced any type of markers to warn of the hazards at the time of the drownings.

The bodies of the two Kesner girls were recovered some twenty-five to thirty-five minutes after they fell into the excavation. Unfortunately, efforts to resuscitate the victims were unsuccessful.

Appellee stipulated in his brief that the three questions set forth in appellants' brief constituted a fair statement of the issues involved in this case:

'(1) Is the form of the verdict prepared by the Court and submitted to the jury, which included parenthetically the maximum damages permitted by Statute, prejudicial to the Defendant in a wrongful death action?

'(2) Is Article 25, Chapter 19, of the West Virginia Code, which limits a landowner's liability to invitees, applicable to the facts of this case?

'(3) Is it mandatory upon a jury to assess some damage under the wrongful death portion of Chapter 55, Article 7, Section 6 of the Code if the jury allows recovery for reasonable funeral and burial expenses under another portion of the same section?'

As regards the first issue, the plaintiff had made no claim in his two actions for wrongful death for an award based upon pecuniary loss. His claims were limited to funeral expenses in the amount of $858.90 for the death of each child and for damages for the wrongful death of each child which, by statute, is not permitted to exceed the sum of $10,000.00.

At the conclusion of the trial, the trial court submitted a verdict form to the jury as follows:

'We, the jury, find for the plaintiff, administrator of the Estate of Carol Ann Kesner and assess damages at $_ _ (not to exceed $10,000.00) and funeral expenses of $858.90, or a total of $_ _'

An identical form was submitted for Mr. Kesner's death claim involving the Dianna Lee Kesner Estate. The appellants contend that the language contained in the parenthesis in the verdict form, '(not to exceed $10,000.00)', unduly impressed upon the minds of the jurors the maximum amount which could be awarded and thus invaded the province of the jury. The appellee, on the other hand, asserts that the jury verdict form is correct and that the appellants suffered no prejudice in any event in that the jury limited its findings to '$No (not to exceed $10,000.00) and funeral expenses of $858.90' for each Kesner girl.

The appellee's point is well taken. In light of the jury's very limited verdicts it is obvious the appellants suffered no actual prejudice through the use of this phraseology in the verdict forms. Likewise, the forms cannot be assailed as being suggestive to the jury that it find for the plaintiff when it would otherwise not do so, since the jury was also given forms to be used if it found for the defendants. Nevertheless, the defendants indirectly question whether the submission of the verdict forms suggests that the jury award damages not proven by the evidence. This contention is without merit in the context of a wrongful death action when the amount indicated ('not to exceed $10,000.00') follows the prescription of the statute, W.Va.Code 1931, 55--7--6, as amended. It is well settled in this jurisdiction that where the jury finds the defendant liable in a wrongful death action, it has absolute discretion, without regard to proof of actual damages, pecuniary loss and the like, to make any award it deems 'fair and just, not exceeding ten thousand dollars.' Legg v. Jones, 126 W.Va. 757, 30 S.E.2d 76 (1944); Hawkins v. Nuttallburg Coal & Coke Co., 66 W.Va. 415, 66 S.E. 520 (1909); Kelley v. Ohio River R. Co., 58 W.Va. 216, 52 S.E. 520 (1905); Sample v. Consolidated Light & Ry. Co., 50 W.Va. 472, 40 S.E. 597 (1901); Couch v. Chesapeake & O. Ry. Co., 45 W.Va. 51, 30 S.E. 147 (1898); Turner v. Norfolk & W.R. Co., 40 W.Va. 675, 22 S.E. 83 (1895).

With respect to the second issue, plaintiff proceeded at trial on the theory that he and his family were business invitees under the common law and consequently, that the defendants owed the plaintiff's decedents the duty of ordinary...