Petros v. Kellas

CourtSupreme Court of West Virginia
Citation122 S.E.2d 177,146 W.Va. 619
Decision Date24 October 1961
Docket NumberNo. 12102,12102
PartiesLucia S. PETROS v. George M. KELLAS et al., Trustees, etc., et al. George Pete PETROS v. George M. KELLAS et al., Trustees, etc., et al.
Syllabus by the Court

1. Under the provisions of Rule 86 of tht West virginia Rules of Civil Procedure, those rules govern all further proceedings in actions pending when they take effect unless in the opinion of the trial court their application would not be feasible or would work injustice; and as to such pending actions the court is authorized to determine whether such rules would not be feasible or would work injustice.

2. In the absence of a showing of lack of feasibility or resultant injustice, this Court will not disturb the action of a trial court in applying the West Virginia Rules of Civil Procedure in a pending action when such rules become effective.

3. 'A County Court is not responsible in damages, at the suit of an individual, for injuries sustained by him in consequence of the neglect of the County Court, or any of its officers, or agents, to perform any duty enjoined by law, unless such action against it was, expressly or by necessary implication, given by statute.' Point 1, syllabus, Watkins v. County Court of Preston County, 30 W.Va. 657 .

4. 'When the material facts are undisputed and only one inference may be drawn from them by reasonable minds the questions of negligence and contributory negligence are questions of law for the court.' Point 3, syllabus, Graham v. Crist, W.Va. .

5. 'When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor.' Point 6, syllabus, Preston County Coke Company v. Preston County Light and Power Company, W.Va. .

6. When the material facts established by the pleadings and other matters not excluded but considered by the trial court, as disclosed by the record in a civil action based on negligence, are undisputed and only one inference may be drawn from them by reasonable minds the questions of contributory negligence and assumption of risk are questions of law for the court, and if such facts establish contributory negligence or assumption of risk by the plaintiff and there is no genuine issue as to any material fact to be tried by a jury, the court should grant a motion of the defendant for summary judgment of dismissal in his favor.

7. The summary judgment procedure provided by Rule 56 of the West Virginia Rules of Civil Procedure does not infringe the constitutional right of a party to a trial by jury; it is not a substitute for a trial or a trial either by a jury or by the court of an issue of fact, but is a determination that, as a matter of law, there is no issue of fact to be tried.

Goodwin, Mead & Goodwin, Wheeling, for plaintiff in error.

W. Frank Keefer, Handlan, Garden, Matthews & Hess, Clowes, Ruckman, McDermott & Ewing, Wheeling, for defendants in error.

HAYMOND, President.

These actions of trespass on the case were instituted in the Circuit Court of Ohio County February 8, 1960. In each action an original declaration was filed March 9, 1960 and an amended declaration was filed June 30, 1960; and these pleadings became a part of the record in each case prior to July 1, 1960, the effective date of the West Virginia Rules of Civil Procedure for Trial Courts promulgated by this Court October 13, 1959. By written stipulation of counsel the same material facts are involved in both actions; and by order entered March 2, 1961, the actions were consolidated to enable the plaintiffs to apply to this Court for a writ of error, which was granted March 27, 1961, to the final judgment rendered by the circuit court August 5, 1960.

In one action the plaintiff Lucia S. Petros, the wife of George Pete Petros, seeks to recover from the defendants George M. Kellas, Mike Grammen, George D. Faller and George Litis, individually and as Trustees of the Hellenic Orthodox Church of St. John the Divine, who will be designated as the trustees, and Edward F. McKee, Albert L. Kress and Hal T. Kain, individually and as the Board of Commissioners of the County of Ohio, a corporation, and as the County Court of Ohio County, who will be designated as the county court, damages for personal injuries allegedly caused by the negligence of the defendants. In the other action the plaintiff George Pete Petros, the husband of Lucia S. Petros, seeks a recovery against the same defendants for medical expenses incurred by him and loss of consortium of his wife which resulted from her injuries. Inasmuch as the questions for decision are identical in each case and the record in the case instituted by the husband has not been presented to this Court, this opinion will deal with and be confined to the case instituted by the wife, Lucia S. Petros, who will be referred to as the plaintiff.

The facts to be considered in the decision of the questions here involved, as disclosed by the record, and which were considered by the circuit court in its decision, are set forth in the original declaration, the amended declaration, and the written answers of the attorney for the plaintiff to certain questions propounding to him by the circuit court in its written memorandum.

By a written agreement dated January 30, 1956, the trustees leased to the county court the basement and the second and third floors of a three-story building located at 2215 Chapline Street in Wheeling, West Virginia, known as St. John's Greek Orthodox Church building, for a period of one year from February 1, 1956, at a monthly rental of $950.00, with an option for its renewal by the county court for additional periods of one year until the completion of the proposed new county courthouse. The leased property was owned by the trustees and the lease provided that the parties should have common use of its front and rear entrances, the lobby and the hallway on the first floor, and the stairways in the front and rear of the building. The county court used the leased portion as a temporary county courthouse and as offices for the various county officers, including the sheriff, the county clerk, the circuit clerk, the assessor, and the judges of the courts of Ohio County, until the first day of February, 1960; and the trustees continued to occupy other parts of the building. The county court agreed to make all repairs, to keep the premises in good order and repair, to save harmless the trustees and to pay all damages suffered by any person upon the premises at any time during the term of the lease. The lease contained numerous other provisions which are not material in the decision of this case.

On April 12, 1960, the county court filed its written demurrer to the original declaration. The principal grounds in support of its demurrer were that the allegations of the declaration showed that the county court in its occupancy of the building used it as a temporary county courthouse and in so doing was engaged in the exercise of a governmental function and for that reason was not liable for any negligence which occurred while it acted in that capacity; and that the plaintiff was guilty of contributory negligence as a matter of law.

On May 16, 1960, pending action on the demurrer, the circuit court, by a written memorandum, requested the attorney for the plaintiff to answer questions concerning the location of the stairway and the place where the plaintiff fell; and on May 18, 1960, the attorney for the plaintiff presented and filed written answers to the questions propounded by the circuit court. On May 24, 1960, after examining the original declaration and considering the answers given by the attorney for the plaintiff, the circuit court, in a written memorandum in connection with the demurrer, indicated that some of the material facts in the declaration were inconsistent with the facts set forth in the answers and that if the declaration and the answers could be read together a demurrer to the original declaration in behalf of all the defendants should be sustained. The circuit court also found that when the plaintiff was injured the steps were under the control of the county court and used by it in conjunction with other parts of the building exclusively as a public courthouse and that, for that reason, there could be no recovery against the county court or its individual members. By order entered June 8, 1960, the circuit court sustained the demurrer of the county court to the original declaration.

The amended declaration alleged that on February 24, 1959, the plaintiff, a citizen of Ohio County, in attempting to descend the stairway which connected the second and the third floors of the building, for the purpose of transacting business with the county officials occupying space in the building, slipped and fell upon the stairway and sustained permanent injury to her person. It charged that due to and as a proximate result of the negligence of the defendants the plainiff, in the exercise of reasonable care for her own safety and without knowledge of the faulty condition of the stairway, attempted to descend the stairway; that by reason of the extreme narrowness of its treads she was unable to obtain a solid footing on the steps and by reason of an overhanging extension of each tread she could not place her foot solidly on the step below; that by reason of the wet, smooth, worn and slippery surface of such treads her foot slipped from a lower step and she lost her balance and fell; that by reason of the failure of the defendants to provide any banister or handrail by which she could brace herself, and the negligent and defective construction of the stairway, she was caused to fall down the stairway and her body came in contact with various steps...

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