Lennox v. White, (No. 10094)

• Decision Date: 14 June 1949
• Docket Number: (No. 10094)
• Citation: 133 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: Tommy Lennox, An Infant, Who SuesBy Jos, T. Rose, His Next Friend v. Bernard H. White, Jr., Et Al, Executors, Etc.

133 W.Va. 1

Tommy Lennox, An Infant, Who Sues

By Jos, T. Rose, His Next Friend

v.Bernard H. White, Jr., Et Al, Executors, Etc.

(No. 10094)

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1949.

Decided June 14, 1949.

1. Negligence

It is the duty of a landlord to exercise ordinary care to maintain in a reasonably safe condition a bathroom owned by him and not under lease and, with the consent of the landlord, used by all of the persons occupying the apartments on the same floor as the bathroom, it being the only bathroom on that floor.

2. Trial Judge

It is not reversible error under Code, 56-6-19, for a trial judge, after a case is submitted to a jury, to give it oral abstract advice concerning the proper and improper mental attitude for a juror to assume toward the matters submitted to be acted upon by him and not touching material matters in issue.

S. Trial Judge

It is error for a trial judge to inquire as to the numerical vote of a jury and, after being informed that their vote stands eleven to one, to advise them that it is their duty to arrive at a verdict if humanly possible consistent with right and justice.

Error from Circuit Court, Kanawha County.

Trespass on the case by Tommy Lennox, an infant, who sues by Jos. T. Rose, his next friend, against Bernard H. White, Jr., and the executors of the estate of Bernard H. White, deceased, for personal injuries. To review a judgment for the plaintiff, defendants bring error.

Judgment reversed; verdict set aside; new trial awarded.

Fox, Judge, concurring. Rummell, Blagg & Stone, for plaintiffs in error.

Kay, Casto & Amos, Vincent V. Chaney, John S. Haight, for defendants in error.

Kenna, Judge:

This action of trespass on the case was brought in the Circuit Court of Kanawha County on behalf of Tommy Lennox, a five year old infant, by Joseph T. Rose, as his next friend, against Bernard H. White. In addition to acting as next friend, Rose is the stepfather of the infant plaintiff, with whom he lived in one of two ground floor, single file, four room apartments then owned by Bernard H. White and managed by Pritchard & Skidmore, Inc., as the landlord's real estate agent. The alleged cause of action arose from the fact that on the late afternoon of November 26, 1945, Tommy Lennox fell astraddle a floor joist in the only bathroom on the ground floor of the four apartment, two story building, a hole in the floor on one side of the joist having been due to bad construction and a hole on the other side of the same joist caused by decay of a floor board. The resultant injury was the loss of one testicle accompanied by considerable pain, suffering and sickness and the doubtful enjoyment of full manhood which can only be determined after the age of puberty. Bernard H. White died pendente lite and the action was revived as against his executors. The final judgment was based upon a verdict for $7,500.00 in favor of the plaintiff.

The assignment of error briefed and submitted are: (1) That there was no duty upon the landlord to keep the bathroom in repair; (2) that the verdict is contrary to the evidence; (3) that it was error to permit the amendment of the declaration to contradict the bill of particulars; (4) that the court erred in instructing the jury orally after it had reported its inability to agree; and (5) that the verdict was excessive.

Dealing with the first assignment, it is a settled principle in this jurisdiction that a landlord as such is not responsible for keeping the leased premises in repair. In this instance, however, Rose's lease was written and the bathroom was not a part of the premises leased to him. It was open to his use and also to the use of the other ground floor tenant, not subject to the exclusive use of either. It was situate mainly at the rear of the other apartment, partly of the one occupied by Rose. There was no direct entrance from a room in either apartment, but there were two doors to the bathroom, one facing the back porch of each apartment, so that the only way into the bath was by way of a back porch. The plaintiff seeks recovery not by virtue of a contractual responsibility of the landlord for the condition of leased premises, but by reason of his responsibility for the condition of that part of the premises not under direct lease, but used in common by the tenants with the knowledge and acquiescence of the landlord resulting in his responsibility under what is known in this jurisdiction as the "common use" principle. In Marsh v. Riley, 118 W. Va. 52, 188 S. E. 748, this Court refused to set aside a verdict on the theory that the landlord was not responsible for maintaining in a reasonably safe condition a bathroom used in common by his tenants. The trial court's order setting aside the verdict for another reason was affirmed, but this court held that a landlord is responsible for ordinary care in maintaining in a reasonably safe condition that part of the premises in common use by his tenants. The plaintiffs in error insist that under the "common use" principle no liability attaches upon the landlord here because the bathroom in question was jointly used by only two tenants and no general common use was permitted. It is to be remembered that there were but two apartments on the ground floor and two apartments on the second floor of a four apartment building. Certainly the tenants on the second floor could not under any reasonable rule be expected to make use of facilities on the first floor to which their apartments did not extend. All of the occupants on the first floor used this bathroom. True, there were only two tenants, but since there were no others to be served within a reasonable range of service, we hold that that bathroom, not being under lease, was brought within the common use principle by the facts and circumstances shown of record.

The second assignment of error rests primarily upon a statement made by Tommy Lennox the day after he was injured to the effect that his stepfather was responsible for his injury because he had placed Tommy in the hole where Mrs. Cochran found him. This Rose did not deny when on the stand, subject to the jury's scrutiny. Tommy Lennox did not testify. He was a rather delicate boy five years of age. He had been very severely injured. On the morning the statement was made he was carrying a temperature of 103 degrees. These are circumstances to be considered in connection with the extreme unlikelihood of the occurrence itself. In our opinion this evidence involved a jury question and did not overcome the weight of the testimony in the plaintiff's favor.

In our opinion the amendment to the declaration did not contradict the bill of particulars. As originally drafted the declaration described an injury to the plaintiff's groin. When Rose was on the stand in the course of his examination in chief he was asked a question which related directly to the plaintiff's loss of a testicle by reason of his injury. To this the defendants objected as relating to an injury not complained of in the declaration. In this connection the defendants called the trial court's attention to the fact that the plaintiff had never complied with the defendants' demand for a bill of particulars, then brought to the court's attention for the first time. It appeared from the uncontradicted statement or plaintiff's counsel that counsel for the defendants at the time of their request for a bill of particulars had been supplied with the report of Dr. Thomas G. Reed and full disclosure of all of the medical evidence then at the disposal of the plaintiff. The amendment alleging the loss of a testicle was permitted over the objection of the defendants who contended that the medical report negatives the idea...