Miller v. City of Morgantown

• Citation: 208 S.E.2d 780,158 W.Va. 104
• Decision Date: 15 October 1974
• Docket Number: No. 13248,13248
• Parties: Goldie Marie MILLER and Dale King Miller v. The CITY OF MORGANTOWN, a municipal corporation, et al.
• Court: Supreme Court of West Virginia

Page 780

208 S.E.2d 780

158 W.Va. 104

Goldie Marie MILLER and Dale King Miller v. The CITY OF MORGANTOWN, a municipal corporation, et al.

No. 13248.

Supreme Court of Appeals of West Virginia.

Oct. 15, 1974.

Syllabus by the Court

1. Where it is clear from the record that issues not raised by the pleadings were not tried by the express or implied consent of the parties, they cannot be treated as if they had been raised in the pleadings under the provisions of Rule 15(b), R.C.P.

2. 'In the absence of a statute or charter provision expressly, or by necessary implication, authorizing a municipality to require an abutting property owner to reimburse the municipality for all loss, damage, cost or expenses that may be imposed upon it by reason of the failure of the property owner to maintain the sidewalk adjacent to his property in good repair, the municipality is without power to do so and an ordinance purporting to so require is, to that extent, invalid.' Point 2, syllabus, Maxey v. City of Bluefield, 151 W.Va. 302, 151 S.E.2d 689.

Charles S. Armistead, Morgantown, for City of Morgantown.

Steptoe & Johnson, Herbert G. Underwood, Robert M. Steptoe, Jr., Clarksburg, for Miller.

BERRY, Justice:

The City of Morgantown, a municipal corporation, one of the defendants below and hereinafter referred to as the City, appeals from a final judgment of the Circuit Court to Monongalia County entered March 30, 1973, which overruled its motion to set aside the jury verdict in favor of the plaintiffs, Goldie Marie Miller and Dale King Miller, and also refused to set aside the jury verdict in favor of Frank G. Cox and Elizabeth Cox Moran on the cross-claim of the City against them.

The plaintiffs instituted this action against both the City and Frank G. Cox and Elizabeth Cox Moran who owned the property abutting the sidewalk where the plaintiff Goldie Marie Miller was injured. This Court granted an appeal to the City on November 19, 1973, but refused to grant an appeal to the property owners. The case was submitted for decision on September 10, 1974 upon oral arguments and briefs filed an behalf of the respective parties.

On December 31, 1971 the plaintiff Goldie Marie Miller fell and fractured her hip while walking along a public sidewalk in the City of Morgantown. The complaint alleged that both the property owners and the City had allowed the sidewalk to remain out of repair and charged an absolute liability on the City.

The plaintiffs introduced into evidence the fact that the City had notice of the defective sidewalk in September 1971. On September 29, 1971 the City sent a notice to the property owners pursuant to a city ordinance requiring the abutting property owners to repair the defective sidewalk within fifteen days of notification by the City or the City would repair the sidewalk and bill the property owners for the cost thereof. No repairs were made by any of the defendants to the sidewalk prior to the plaintiff's fall.

The first defense contained in the answer filed by the City was: 'The complaint fails to state a claim upon which relief can be granted because it alleges no negligent acts or omissions chargeable to this defendant.' The answer demanded that the action be dismissed as to the City. In his opening statement to the jury the attorney for the plaintiffs stated that he believed the court would instruct the jury that the City has an absolute duty to keep sidewalks in repair and if a sidewalk is not in repair and someone is injured as a result thereof without any negligence on the part of the party injured, the injured party has an absolute right to recover against the City of Morgantown.

The City did not introduce any evidence during the trial of the case and after the plaintiffs rested their case, the following statement was made by counsel for the City, in compliance with the court's request to hear the position of all counsel with regard to the issues involved: 'Very well, sir. May I understand where we are so far in the proceedings? As I understand in this, the plaintiff is taking the position that the city is absolutely liable under Code 17--10--17 and so the plaintiff has charged no negligence against the city at all, charging negligence against Cox and Moran, is that correct, Mr. Frame? Mr. Frame: That's correct.' Mr. Frame was counsel for the plaintiffs. After this exchange, the court then overruled the City's motion for a directed verdict.

The City cross-claimed against the defendant property owners relying on the municipal ordinance which placed responsibility on the property owners for the sidewalk being out of repair and which required the property owners to reimburse the City for any damages recovered against it resulting from the defective condition of the sidewalk. Error was assigned with regard to the City's cross-claim. However, no judgment was entered by the trial court on the jury's verdict on the cross-claim.

It is clear from the record in this case that the trial court allowed the case to be submitted to the jury on an erroneous application of the law as to the City of Morgantown. It is true that Code, 17--10--17, before it was amended in 1969, did impose absolute liability on the part of a city in connection with an injury arising out of a defective sidewalk. However, in 1969 this section of the Code was amended to read as follows:

Any person who sustains an injury to his person or property by reason of any road or bridge under the control of the county court or any road, bridge, street, alley or sidewalk in any incorporated city, town or village being out of repair Due to the negligence of the county court, Incorporated city, town or village may recover all damages sustained by him by...