Morgan v. Price

• Decision Date: 01 November 1966
• Docket Number: No. 12536,12536
• Citation: 150 S.E.2d 897,151 W.Va. 158
• Court: West Virginia Supreme Court
• Parties: Juanita MORGAN et al. v. Paul H. PRICE.

Page 897

150 S.E.2d 897

151 W.Va. 158

Juanita MORGAN et al. v. Paul H. PRICE.

No. 12536.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1966.

Decided Nov. 1, 1966.

Syllabus by the Court

1. 'A person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business.' Point 1 Syllabus, Burdette v. Burdette, 147 W.Va. 313 (127 S.E.2d 249).

2. 'The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition.' Point 2 Syllabus, Burdette v. Burdette, 147 W.Va. 313 (127 S.E.2d 249).

3. It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given.

4. A general objection to the introduction of evidence, in the form of a writing, which is admissible and proper in part but which is inadmissible and improper in part, is properly overruled.

5. An appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.

6. This Court strongly disapproves the action of the trial court in suspending the trial of the case from one day until the second day thereafter, after the case had been submitted to the jury for decision, and, during the period of such suspension, in permitting a total of eight of the twelve jurors to sit in the trial of two other cases before the twelve jurors in the original case were reassembled to commence or to resume their deliberations. This procedure does not furnish a basis for reversal in this case, in the absence of a proper objection in the trial court to such procedure.

7. 'Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.' Point 1 Syllabus, The State Road Commission v. Ferguson, 148 W.Va. 742 (137 S.E.2d 206).

8. In the trial of an action, when a motion is made, at the conclusion of the plaintiff's evidence in chief, to direct a verdict in favor of the defendant, and such motion being overruled, the defendant proceeds with the trial by the introduction of evidence is his own behalf, the benefit of such motion and the error, if any, on the part of the trial court in overruling the motion are waived.

9. A jury verdict based on conflicting testimony, involving credibility of witnesses and reasonable inferences to be drawn from testimony and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.

Ezra E. Hamstead, Richard E. Hamstead, Morgantown, for appellant.

Jesse M. Jaco, Morgantown, for appellees.

CALHOUN, Judge:

This case, on appeal from the Circuit Court of Monongalia County, involves a civil action against Dr. Paul H. Price in which Juanita Morgan recovered judgment on a jury verdict for $15,000 for personal injuries sustained by her, and in which her husband, Cleo C. Morgan, recovered judgment on a jury verdict for $365.27 for medical bills incurred by him as a consequence of the personal injuries sustained by his wife. Dr. Price has been granted the appeal to this Court. The parties will be referred to in this opinion as the plaintiffs and the defendant.

The personal injuries were sustained by Juanita Morgan when she fell on August 25, 1963, as a result of an alleged defect in a board on a boat dock owned and maintained by the defendant on the Monongahela River at Uffington, Monongalia County, West Virginia.

The defendant, Dr. Paul H. Price, is the sole owner and operator of a business enterprise known as the Uffington Boat Club. This consists primarily of the boat dock for pleasure boats, but nearby and in connection therewith the defendant owns and maintains a ramp sloping downward from the shore into the river which is used for the purpose of putting boats into and taking boats out of the river. The defendant makes a charge of one dollar for the privilege of launching a boat at this ramp. Near the boat dock, the defendant also owns and maintains a pump used for supplying gasoline to boats. Nearby on the shore, on the defendant's property, are picnic tables, a vending machine for dispensing soft drinks, and a vending machine for dispensing ice cream. In connection with these facilities, gasoline, oil, soft drinks and ice cream are available for sale by the defendant.

There was testimony before the jury which was adequate to justify a jury in finding that all people coming there on the river in boats were permitted without restriction to purchase these items of merchandise which were available for sale by the defendant. While signs were maintained on the premises stating, in effect, that the premises constituted private property and that trespassers were not permitted to enter thereon, it is not certain that any of these signs were clearly visible from the river. The plaintiffs testified that on previous occasions they had purchased gasoline, soft drinks and ice cream at that place from the defendant. While the defendant testified that such items of merchandise were available for sale and purchase primarily for the benefit of his patrons who moored their boats at the dock, it appears clearly from the testimony that such items of merchandise were sold regularly, possibly as a courtesy, to all persons who came there in boats.

The main portion of the boat dock, as it appears from a photograph in the record as an exhibit in connection with the testimony, is long in relation to its width, extending lengthwise parallel to the shoreline. A walkway extends to it from the river bank. On the opposite or river side of the dock, there are wooden walkways extending outward toward the center of the river. Each of these walkways, which are referred to in the record as fingers, extends outward from the dock a distance approximately equal in length to the average length of the boats docked there. Between the two fingers in each instance, there is a space sufficient to accommodate two boats side by side in the water while such boats are moored to the main part of the dock.

In connection with the operation of the dock, the defendant charges boat owners for the right to dock and moor their boats in the spaces between fingers. The charge thus made by the defendant gives to the owner and other users of a boat the right to use the adjacent finger as a means of boarding or leaving the boat. The right to this use of the finger is shared with the owner and other users of the boat which is docked in the space on the opposite side of the same finger. While it is sometimes implied in the record that the defendant rents the fingers to boat owners, we believe it is more accurate to say that boat owners are charged for the right to keep their boats in the spaces between fingers, with the accompanying right in each boat owner and his guests to use the adjacent finger jointly with the owner and other users of the boat in the space on the opposite side of the same finger. This is made clear, we believe, from the testimony of the defendant and the testimony of Harry G. Lucas, who initially owned and operated this business enterprise jointly with the defendant.

The plaintiffs, at the time of the accident involved in this case, were the owners of a boat which they kept at a dock referred to in the testimony as Little Falls Boat Club and which is owned jointly by the plaintiffs and other persons. The plaintiffs' boat had been launched at the defendant's launching facility at the beginning of the 1963 boating season because there are no launching facilities at the Little Falls Boat Club. Dr. Price, the defendant, testified: 'As a matter of fact, practically all of the Little Falls Boat Dock people put their boats in there to get to their dock. They launch them over that ramp.'

On Sunday, August 25, 1963, Mrs. Morgan's brother from Kansas City, Missouri, was at Morgantown. He had brought to Morgantown his own boat which had been transported by him on a trailer hitched to his automobile. The plaintiffs, the brother from Kansas City and other persons planned to meet at the defendant's place of business at Uffington on that day. According to the testimony, it was part of the plan that the members of the group would have a picnic, engage in skiing on the river, and incidentally purchase soft drinks and gasoline for the boats from the defendant. The brother put his boat in the river at the defendant's launching ramp. Later the plaintiffs arrived in their boat and placed it in a space adjacent to one of the fingers.

Juanita Morgan, the plaintiff, alighted from the boat onto the adjacent finger and, according to her testimony, after she had proceeded a distance of seven or eight steps, a board on the finger broke and, as a consequence, all of her body below her bosom went through the opening made by the broken board. She sustained severe personal injuries. There is no serious contention that the verdict in her favor is excessive in amount.

The testimony was adequate to support a jury finding that the plaintiffs, in placing their boat temporarily in the vacant space adjacent to one of the fingers, were making a permissive use of that space in accordance with a practice which was quite general and a matter of common knowledge among boaters of that general area. The testimony establishes the fact that this was in accordance with a general practice among boaters who desired to purchase items of merchandise which were available for sale by the defendant. If a boat owner thus placed his boat...