Michaelson v. Cautley

• Decision Date: 07 December 1898
• Citation: 32 S.E. 170,45 W.Va. 533
• Court: West Virginia Supreme Court
• Parties: MICHAELSON. v. CAUTLEY.

32 S.E. 170

(45 W.Va. 533)

MICHAELSON.

v.CAUTLEY.

Supreme Court of Appeals of West Virginia.

Dec. 7, 1898.

Appeal—Review — Gkant of Certiorari — New Trial—Evidence.

1. The writ of certiorari, when awarded in civil cases before justices, under sections 2, 3, c. 110, Code, is an appellate process, designed to effect the ends of justice; and the circuit court has a large discretion in awarding the same, reviewing judgments, and granting new trials thereunder, and, unless such discretion is plainly abused, this court cannot interfere therewith.

2. If the evidence presents mixed questions of law and fact, material to the issue involved, about which two reasonable men, learned in the law, might differ as to the proper determination thereof, the circuit court commits no appealable error in awarding a new trial.

3. If improper testimony in favor of the prevailing party is admitted by the justice, and it be doubtful whether the same was prejudicial to the opposite party or not, the action of the circuit court in awarding a new trial will not be reviewed by this court.

(Syllabus by the Court.)

Error to circuit court, Kanawha county; P. A. Guthrie, Judge.

Action by O. H. Michaelson against Lucy R. Cautley. Verdict for plaintiff. From an order granting a new trial, plaintiff brings error. Dismissed.

W. s. Laidley, for plaintiff in error.

Brown & Brown, s. L. Flournoy, Joseph M. Brown, and W. Mollohan, for defendant in error.

DENT, J. On writ of error, the plaintiff complains that the circuit court did not quash the certiorari allowed the defendant in the above case to a judgment of a justice founded on the verdict of a jury for $300, but reversed the judgment and awarded a new 'trial. The facts are as follows: The plaintiff rented of the defendant the first story and the basement of a certain building situated on Quarrier street, in Charleston. The upper portion of the building was rented by other tenants, except a certain room, which was vacant. On the night of the 4th of February, 1898, an exposed water pipe in this vacant room burst, and the water ran out down into the room occupied by plaintiff, and damaged his goods to a sum in excess of the $300 damages demanded. The place to turn off the water from the building was in the basement, rented by plaintiff, and no one could reach it except by his permission. During the middle of the night, when the leakage was discovered, a messenger was sent to plaintiff, who lived some distance away, to inform him, and get the key; and the water was then turned off, and due effort made to save plaintiff's goods, consisting of musical instruments, etc.

On a trial of the case before the jury, the justice, on motion of the plaintiff, gave the two following instructions, to which defendant objected: "(1) That if the jury believes from the evidence adduced that the plaintiff was a tenant of the defendant, and that in consequence of the defective plumbing or want of repair, or negligence of the defendant, the plaintiff suffered an injury to his property without any fault of his own, then the plaintiff is entitled to recover damages for the injury sustained in consequence thereof. (2) If the jury find that the defendant is liable to the plaintiff, that the measure of damages for the injury done is that amount that will compensate and make the plaintiff whole, —the difference in value of the property injured between that which was immediately before the injury done and that afterwards." These instructions appear to properly propound the law, and are simply to the effect that if the damages suffered by the plaintiff were caused by defective plumbing, owing to the negligence of the defendant, the jury should award such damages as plaintiff had suffered by reason of such negligence. The plumbing is a part of the building, and the landlord is liable to his tenant for defective construction thereof, although there is no covenant to repair. 12 Am. & Eng. Enc. Law, 687; Stapenhorst v. Manufacturing Co., 15 Abb. Prac. (N. S.) 355. The room in which the leak occurred was not rented, but was vacant and under the control of the landlord. The pipe was exposed, and an inevitable accident happened by reason of the freezing weather. This is an accident that in this climate, in the month of February, can be easily foreseen and provided against either by proper protection of exposed pipes, or turning off the water supply, and Is one that only calls for ordinary care. In such case the landlord Is liable, unless he can shift such liability to the ten-ant by reason of the latter's contributory negligence. If the tenant is fully informed of the defect, and has it in his power to avoid the same by proper precaution on his part, and fails to do so, his negligence, being contributory, will relieve the landlord from liability. Shear. & It. Neg. (4th Ed.) § 722; Brown v. Elliott, 4 Daly, 329; Mendel v. Fink, 8 111. App. 378; Kenny v. Barns, 67 Mich. 336, 34 N. W. 587.

The defendant asked for the following five instructions, which were refused by the justice: "(1) The court instructs the jury that if they believe from the evidence that there was no express contract to the effect that the landlord, Cautley, should keep in repair the house and tenement occupied by her tenant, Michaelson, then they should find for the defendant, Cautley. (2) The court instructs the jury that, if they believe from the evidence that there was no express contract on the part of Cautley to keep in repair the building leased from her by Michaelson, then the jury should find said defendant, Cautley, not liable for any damages which plaintiff, Michaelson, might have suffered from water leaking and running down from apartments in said building above those occupied by Michaelson. (3) The court instructs the jury that if they believe from the evidence that the landlord, Cautley, had not covenanted to repair the building leased by her tenant, Michaelson, and that Cautley is not chargeable with any affirmative misfeasance, or neglect of positive duty, then the jury should find for the defendant, Cautley. (4) The court further instructs the jury that if they believe from the evidence that the premises leased by the plaintiff from the defendant were not In good repair at the date of the lease, or thereafter, and that by reason of said premises being out of repair the plaintiff was damaged, and that there was no covenant or agreement by the defendant that she should repair said premises, then the jury should find for said defendant, Cautley. (5) The court further instructs the jury that if they believe from the evidence that the plaintiff, Michaelson, was damaged by the water pipe bursting and leaking water in a room in the leased building above those rooms leased by said Michaelson in said building, and that said water pipe which caused said damage was not constructed or used to supply water to that part of said building which was leased by said Michaelson, and that said defendant, Cautley, had not contracted to repair said premises, and had not caused said damage by any act of affirmative misfeasance, or neglect of positive duty, on her part, then the jury should find for the defendant, Cautley." These instructions were not proper in this case, for it does not involve the question of repair, but defective construction of the building, owing to the water pipe not being properly protected from the frost in a room in the building not under rent or occupied by any one; hence it was under the control of the landlord. If she had gone up there in the nighttime and flooded the building with a hose to the same extent, her legal liability would have been of the same character, except her conduct would have been more willful. Negligence in looking after the matter herself, or having her agents or tenants to do so for her, was the cause of the leakage. If the room where it occurred had been under rent to the plaintiff or other person, the liability might have shifted.

The only remaining question is as to whether the circuit court erred in setting aside the verdict of the jury on the evidence alone. In the case of Grogan v. Railway Co., 39 W. Va. 415, 19 S. E. 563 (Syl. point 2): "Though evidence is conflicting, the court may set aside the verdict if against the weight of the evidence, but such power should be exercised cautiously. When the court does so, its action is regarded with peculiar respect in an appellate court, and will not be reversed, unless plainly wrong." This is the rule as to trials had in the circuit court. It should be applied with equal liberality as to trials had before justices, when reviewed by the circuit court, and a new trial has been awarded. In the case of Harrow v. Railroad Co., 38 W. Va. 717, 18 S. E. 926, Judge Holt says: "The statutory writ of certiorari is intended as a method whereby the rulings of the justice, etc., may be reviewed, —especially his rulings granting or refusing to set aside verdicts; and the scope and tenor of the act...