Puffer v. Hub Cigar Store, 10676

• Decision Date: 26 October 1954
• Docket Number: No. 10676,10676
• Citation: 84 S.E.2d 145,140 W.Va. 327
• Court: West Virginia Supreme Court
• Parties: S. P. PUFFER, v. The HUB CIGAR STORE, Inc.

Page 145

84 S.E.2d 145

140 W.Va. 327

S. P. PUFFER, v. The HUB CIGAR STORE, Inc.

No. 10676.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1954.

Decided Oct. 26, 1954.

Syllabus by the Court

1. An invitation is implied when premises of an owner or an occupant are entered or used for a purpose which is beneficial to the owner or the occupant, or when the entry or the use is for the mutual benefit of the owner or the occupant and the entrant or the user of the premises.

2. A person is an invitee when for purposes connected with the business conducted on the premises he enters or uses a place of business.

3. The owner or the occupant of premises used for business purposes is not an insurer of the safety of an invited person present on such premises and, if such owner or occupant is not guilty of negligence or willful or wanton misconduct and no nuisance exists, he is not liable for injuries there sustained by such invited person.

4. 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. This duty requires the owner or the occupant of premises to exercise ordinary care to protect an invited person from injury inflicted by other persons present on such premises; and if such owner or occupant fails to perform such duty and his negligence is the proximate cause of injuries inflicted upon an invited person by another person such owner or occupant is liable to such invited person.

5. 'To be actionable, negligence must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.' Point 3, syllabus, Hartley v. Crede, W.Va. .

6. A person is not liable for damages which result from an event which was not expected and could not reasonably have been anticipated by an ordinarily prudent person.

7. 'Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted.' Osborne v. Atlantic Ice & Coal Company, 207 N.C. 545 .

8. 'Where in a trial of an action at law before a jury, the verdict returned is without evidence to support it, or is plainly wrong, it will be set aside by this Court, the judgment entered thereon reversed, and the case remanded for a new trial.' Syllabus, De Luz v. Board, 135 W.Va. 806 .

J. B. Fisher and Donald L. Schaffer, Charleston, for plaintiff in error.

Poffenbarger & Bowles and L. F. Poffenbarger, Charleston, for defendant in error.

HAYMOND, Judge.

In this action of trespass on the case instituted in the Court of Common Pleas of Kanawha County, West Virginia, on April 28, 1953, the plaintiff, S. P. Puffer, seeks to recover damages from the defendant, The Hub Cigar Store, Inc., for personal injuries alleged to have been caused by the negligence of the defendant in failing to protect the plaintiff against injuries inflicted upon him by a third person, who at the time was noticeably intoxicated, while the plaintiff was present as an invitee of the defendant in its place of business at No. 917 Quarrier Street in the City of Charleston, on March 22, 1953.

The case was tried upon the declaration of the plaintiff and the plea of not guilty of the defendant. At the conclusion of the evidence introduced in behalf of the plaintiff and at the conclusion of all the evidence, the defendant made separate motions for a directed verdict in its favor. These motions were overruled. The jury returned a verdict in favor of the plaintiff for $12,500. The trial court overruled the motion of the defendant to set aside the verdict and grant it a new trial and, on September 3, 1953, entered judgment upon the verdict. The Circuit Court of Kanawha County, by judgment entered February 18, 1954, refused to grant the defendant a writ of error to the judgment of the court of common pleas; and to the judgment of the circuit court the defendant prosecutes this writ of error.

On and for some time prior to Sunday, March 22, 1953, the defendant operated a restaurant, poolroom, cigar, and soft drink business in a large room on the first floor of a building at No. 917 Quarrier Street in the City of Charleston. The front part of the room abutting on Quarrier Street contained plate glass windows on each side of the main entrance. Inside the room, to the right of the main entrance, was a cash register and a lunch counter and to the left of the main entrance, and opposite the lunch counter, was a cash register and a cigar counter. In the section of the room in the rear of these counters was a poolroom, the entrance to which was through swinging doors.

About twelve thirty o'clock in the afternoon of Sunday, March 22, 1953, the plaintiff who was then about seventy nine years of age and resided at a nearby hotel on Quarrier Street, entered the place of business of the defendant, of which he had been a patron for several years, for the purpose of eating his lunch. He went to the lunch counter and ordered specially prepared food consisting of a dish of potato hash. He stood at the lunch counter at a distance of about eight feet from the main or street entrance to the room. When he entered the place of business of the defendant three of its employees, the manager, a man named Warden, a clerk, named Fisher, and a waitress, named Dent, were on duty, and a few other patrons were in the room. Warden was at or near the cash register located at the front end of the cigar counter, Fisher was in the front part of the room or at or near the cigar counter, and Miss Dent was operating the lunch counter where food was served and at which the plaintiff was standing.

While the plaintiff was waiting to receive the food which he had ordered he and an acquaintance named Laird, who was also standing at the lunch counter at a distance of about four feet from the plaintiff, observed an unknown man on the sidewalk in front of the room in a noticeably intoxicated condition who staggered and fell upon the sidewalk and against the plate glass windows at the front of the room. This man stayed on the sidewalk for about ten minutes and then entered the room where he remained for a few minutes. While in the room he staggered and stumbled and appeared to be unable to walk in a normal manner. The plaintiff testified that he observed the condition of the unknown man, and said to Fisher: 'This is an ambulance case. You better get him out.'; and that he also told Miss Dent: 'You better protect yourself, because he is liable to break your window.' According to the testimony of the plaintiff, Fisher then escorted the man from the room through the front entrance and while he was being so removed he walked and was not carried from the room.

After the intoxicated man went or was taken by Fisher out the front door he remained on the sidewalk for five or ten minutes and again entered the room. Upon his reentry he went to the lunch counter, between the plaintiff and Laird who were still standing at that counter, and asked Fisher for a cup of coffee. Fisher ignored the man's request. After the man had been in the room the second time for a period of approximately two to five minutes he fell to the floor at a point near and between the plaintiff and Laird who continued to stand at or near the lunch counter where the plaintiff was waiting to receive his order of food. When the man fell his head struck the counter, and while he was on the floor he grabbed one leg of the plaintiff at the ankle, and caused the plaintiff to fall to the floor. As a result of the fall, caused by the intoxicated person, the plaintiff's left hip was fractured and he sustained the injuries for which he seeks a recovery of damages from the defendant.

Within a few minutes after the plaintiff was injured the city police were summoned by Fisher and the intoxicated person was removed by them from the sidewalk in front of the room where he had gone after he caused the plaintiff to fall. The plaintiff was taken in an ambulance, which had been called by Curry, a patron, and the manager of the defendant accompanied the plaintiff from the defendant's place of business, to a Charleston hospital, where the plaintiff remained and was treated as a patient from March 22, 1953, until May 8, 1953, after which he was confined to his hotel room until May 29, 1953, when he apparently returned to his work as clerk of the Selective Service Draft Board in Charleston.

As a result of his injury the plaintiff incurred hospital bills amounting to $875.00, a doctor bill of $200.00, and loss of wages for a period of approximately ten weeks amounting to $700.00. At the time of the trial, which was held on August 4, 1953, the plaintiff could walk only with the aid of crutches, and his injuries caused him pain. While confined to the hospital the plaintiff was required to submit to a surgical operation in the treatment of the fracture of the neck of the femur or hip bone of his left leg, and a doctor who examined him expressed the opinion that the injury of the plaintiff was permanent and that he would likely have a slight limp which would also be permanent.

Upon the trial the plaintiff and two witnesses in his behalf, Laird and Slack, and three witnesses in behalf of the defendant, Fisher, Curry and Dent, testified concerning the acts and the demeanor of the intoxicated person who caused the plaintiff to fall. These witnesses, including the plaintiff, testified that this man, whom none of them knew, was in a noticeable state of intoxication; that his condition was such that he could not control his acts or conduct; that he staggered or stumbled and fell and was unable to walk or talk normally; that he was not noisy or boisterous; and that he made no threats or threatening gestures. None of them regarded him as dangerous or likely to cause harm to any one. On that point the...