Long v. City of Weirton

• Citation: 158 W.Va. 741,214 S.E.2d 832
• Decision Date: 29 April 1975
• Docket Number: No. 13155,13155
• Court: Supreme Court of West Virginia
• Parties: Susan Marie LONG, a minor, et al. v. The CITY OF WEIRTON et al., and Manufacturers Heat and Light Co., a corp.

Page 832

214 S.E.2d 832

158 W.Va. 741

Susan Marie LONG, a minor, et al. v. The CITY OF WEIRTON et al., and Manufacturers Heat and Light Co., a corp.

No. 13155.

Supreme Court of Appeals of West Virginia.

April 29, 1975.

Syllabus by the Court

1. 'Where two or more persons are guilty of negligence which occurs in point of time and place, and together proximately cause or contribute to the injuries of another, such persons are guilty of concurrent negligence and recovery may be had against both or all of them.' Syllabus point 13., Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).

2. Appropriate and immediate response to hazards attendant to known gas leaks is a duty of one who is charged with controlling substances of dangerous character; reasonableness of response to such hazards is normally a question for the jury.

3. It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony is conflicting.

4. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Syllabus point 3., Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).

5. In a concurrent negligence case, the negligence of the defendant need not be the sole cause of the injury, it being sufficient that it was one of the efficient causes thereof, without which the injury would not have resulted; but it must appear that the negligence of the person sought to be charged was responsible for at least one of the causes resulting in the injury.

6. Although an injured party is required to prove actionable negligence by a preponderance of the evidence, the law does not require that the plaintiff exclude every other plausible theory as to the cause and effect of the accident.

7. 'In putting hypothetical questions to expert witnesses counsel may assume the facts in accordance with their theory of them; it is not essential that they should state them as they exist; but the hypothesis should be based on a state of facts, which the evidence in the cause tends to prove.' Syllabus point 7., Kerr v. Lunsford, 31 W.Va. 659, 8 S.E. 493 (1888).

8. 'Article VI, Section 35 of the Constitution of West Virginia which provides that the state shall never be made a defendant in any court of law or equity does not apply to a municipality and does not afford such municipality any protection from suit.' Syllabus point 4., Higginbotham v. City of Charleston, W.Va., 204 S.E.2d 1 (1974).

9. Inasmuch as a common-law rule of municipal governmental immunity from tort liability was not adopted and operable within the Commonwealth of Virginia prior to the formation of this State, that supposed rule was not incorporated by Constitution into the common law of West Virginia.

10. The rule of municipal governmental immunity is now abolished in this State.

11. A municipal corporation shall be liable, as if a private person, for injuries inflicted upon members of the public which are proximately caused by its negligence in the performance of functions assumed by it.

12. To the extent that the holdings and statements in the opinions in Jones v. City of Mannington, 148 W.Va. 583, 136 S.E.2d 882 (1964); Van Gilder v. Morgantown, 136 W.Va. 831, 68 S.E.2d 746 (1949); Hayes v. Cedar Grove, 128 W.Va. 590, 37 S.E.2d 450 (1946); Hayes v. Cedar Grove, 126 W.Va. 828, 30 S.E.2d 726 (1944); Haney v. Town of Rainelle, 125 W.Va. 397, 25 S.E.2d 207 (1943); Morgan v. City of Logan, 125 W.Va. 445, 24 S.E.2d 760 (1943); Carder v. City of Clarksburg, 100 W.Va. 605, 131 S.E. 349 (1926); Shaw v. Charleston, 57 W.Va. 433, 50 S.E. 527 (1905); Ritz v. Wheeling, 45 W.Va. 262, 31 S.E. 993 (1898); Brown's Adm'r v. Guyandotte, 34 W.Va. 299, 12 S.E. 707 (1890); Mendel & Co. v. City of Wheeling, 28 W.Va. 233 (1886), and any other former decisions of this Court similarly denying tort recovery in a civil action against a municipal corporation upon the rule of municipal governmental immunity, are inconsistent or are in conflict with the holdings in points 8., 9., 10., and 11. of the Syllabus of this case, such decisions are expressly overruled and disapproved.

13. The rule of Stare decisis does not apply where the former decisions have misinterpreted or misapplied a rule or principle of law.

14. The award of special medical expenses in a personal injury case is predicated on proof of the reasonable value of such expenses necessarily incurred by reason of the defendant's negligence, and not upon the actual expenses paid.

15. A natural father's obligation for payment of necessary medical expenses incurred in the care and treatment of his infant children is not terminated necessarily by divorce from the natural mother and relinquishment of custodial rights to children. The duty of maintenance of infant children is a principle of natural law, founded upon common sense and natural justice, and where the child is living away from the father, the question of liability for maintenance depends upon the circumstances of the case.

16. Either or both a father and mother, being equally responsible and qualified to tend to the requirements and needs of an infant child, may recover out-of-pocket and future expenses for care and treatment of an infant child injured by the actionable negligence of another.

17. A verdict disproportionately allocating an award against joint tort-feasors is patently erroneous, and upon the return of such verdict, it then and there becomes the duty of the trial court to require the jury to return a proper verdict.

18. 'The extent of the cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in case of manifest abuse or injustice.' Syllabus point 4., State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956).

19. "A jury is better able to judge of the circumstances of a case, the weight of the testimony, and the peculiar hardships and aggravations attendant upon an injury, and its verdict for damages for personal injury, which is not so excessive as to indicate, as a matter of law, passion, prejudice, partiality, mistake, or lack of due consideration, will not be set aside by this Court on that ground.' Syllabus, Williams v. Penn Line Service, Inc., 147 W.Va. 195, 126 S.E.2d 384 (1962).' Syllabus point 14., Abdulla v. Pittsburgh and Weirton Bus Co., W.Va. (213 S.E.2d 810) (1975).

20. 'Although a court is required to instruct or charge a jury on every important theory of claim or defense supported by the evidence of the case, the court is not bound thereby to charge the jury in the exact language proffered by a party's instruction. Within the constraints of fairly presenting all parties' conflicting theories, the court is authorized by Code 1931, 56--6--19 to deviate from the language of proffered instructions so as to effect an ordered and logically connected charge to the jury.' Syllabus point 2., Parker v. Knowlton Construction Company, Inc., W.Va. (210 S.E.2d 918) (1975).

21. A verdict by which a plaintiff recovers against one or more defendants but which is silent as to others is a verdict in favor of the defendants not named.

Charles D. Bell, Wellsburg, George F. Swearingen, Edward B. Calland, Pittsburgh, Pa., Edward W. Eardley, Charleston, for appellant Manufacturers Light & Heat Co.

John Vujnovic, Vujnovic & Ridgway, William J. Ridgway, Weirton, for City of Weirton.

James McLaughlin and William W. McVay, Pittsburgh, Pa., for appellees.

Pinsky, Mahan, Barnes, Watson, Cuomo & Hinerman, John W. Cooper, Weirton and Wellsburg, for Tri-State Asphalt Corp.

Frankovitch & Anetakis, George J. Anetakis, Weirton, for White Const. Co.

HADEN, Chief Justice:

This is an appeal by Manufacturers Light and Heat Company from a final order of the Circuit Court of Hancock County confirming a judgment entered against it upon a jury verdict in the amount of $216,545.00, but exonerating the City of Weirton as a joint tort-feasor under the same jury verdict on the City's motion for judgment based upon absolution of liability under the 'doctrine of governmental immunity.'

This action was instituted on behalf of Susan Marie Long, an infant, by her coguardians against Manufacturers (the 'gas company'), the City of Weirton, James White Construction Company and Tri-State Asphalt Corporation for damages resulting from personal injuries suffered by the infant as a result of an explosion and fire which destroyed the home in which she resided. Additionally, special damages were sought by her natural father, Henry A. Long, Jr., her natural mother, Marjorie Long Conley, and her stepfather, Floyd Conley. The jury returned a verdict on October 31, 1969, in the aggregate amount of $216,545.00 against Manufacturers and the City, but did not find specifically either for or against James White Construction Company or Tri-State Asphalt Corporation. Subsequently, judgment was entered on the verdict, against the gas company and the City, but also reflected exoneration of James White Construction Company and Tri-State Asphalt Corporation from any liability to plaintiffs.

Upon proper motions for judgment and a new trial made by appellant and the City, the lower court granted the motion of the City for judgment based upon the 'doctrine of governmental immunity,' and by the order appealed from denied appellant's motions, thereby allowing the judgment to stand against Manufacturers alone.

The construction company and the asphalt corporation filed in this Court motions to dismiss the appeal against them coincident with the submission of this case for decision. Accordingly, we shall address these motions in...