Reese v. Lowry, 10657

• Citation: 86 S.E.2d 381,140 W.Va. 772
• Decision Date: 22 March 1955
• Docket Number: No. 10657,10657
• Parties: V. E. REESE and Mattie Reese, v. C. H. LOWRY and Thomas James, Doing Business as Kalamazoo Sales and Service Company of Oak Hill, et al.
• Court: West Virginia Supreme Court

Page 381

86 S.E.2d 381

140 W.Va. 772

V. E. REESE and Mattie Reese, v. C. H. LOWRY and Thomas James, Doing Business as Kalamazoo Sales and Service Company of Oak Hill, et al.

No. 10657.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1955.

Decided March 22, 1955.

Syllabus by the Court

1. 'Before directing a verdict in defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.' Pt. 1 Syl., Fielder, Adm'x v. Service Cab Co., 122 W.Va. 522 .

2. Where, in an action to recover damages for negligence, the defendant relies on the contributory negligence of the plaintiff as a bar to recovery, the burden rests upon the defendant to show such negligence by a preponderance of the evidence, unless contributory negligence is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the circumstances portrayed by the record.

3. 'The proximate cause of an injury is the last negligent act contributing thereto, without which such injury would not have resulted.' Pt. 2 Syl., Webb v. Sessler, 135 W.Va. 341 .

4. Though a trial court's action in setting aside a verdict for the plaintiff is entitled to peculiar weight on writ of error, a trial court's order setting aside a verdict in plaintiff's favor, nevertheless, will be reversed by this Court on writ of error, when a consideration of all the evidence clearly shows that the case was properly one for jury determination.

J. Campbell Palmer, III., Charleston, Carl B. Vickers, Fayetteville, for plaintiffs in error.

Mahan, White & Higgins, Fayetteville, for defendants in error.

RILEY, Judge.

In this action of trespass on the case, instituted in the Circuit Court of Fayette County by V. E. Reese and Mattie Reese against C. H. Lowry and Thomas James, partners doing business as Kalamazoo Sales and Service Company of Oak Hill, and Kalamazoo Stove and Furnace Company, a corporation, plaintiffs sought to recover from defendants damages for the destruction by fire of plaintiffs' dwelling house and the contents thereof, situated in the Town of Dothan, Fayetteville District, Fayette County, alleged to have been caused by the negligence and improper installation by the defendants of a furnace installed for the purpose of heating plaintiffs' dwelling house. To a judgment of the circuit court setting aside a verdict in favor of plaintiffs against the defendants, C. H. Lowry and Thomas W. James, in the amount of five thousand dollars, and granting the defendant partners a new trial, plaintiffs prosecute this writ of error. The plaintiffs moved the court that they be permitted to take a nonsuit against the corporate defendant, which motion was granted.

The dwelling house alleged to have been destroyed by reason of the carelessness and negligence of the defendants originally consisted of a four-room house or shack, situated on approximately 3.2 acres of land, obtained by plaintiff, V. E. Reese, in the course of the trade of a 1942 Ford automobile valued at the time of the trade at fifteen hundred dollars. At the time of the fire on December 17, 1951, the dwelling house had been expanded by the plaintiff, V. E. Reese, who had been a carpenter for forty-two years, to a house of seven rooms, with a bath and porch, the improvements resulting in enlarging the house from 24 X 28 feet to 24 X 40 feet, the installation of eight additional windows, a complete electrical rewiring of the house, and the installation of plumbing to service the house with running water, so that at the time the house was destroyed it had a value, according to the testimony of V. E. Reese, of six thousand dollars, which value is not questioned in this record nor on this writ of error. In addition to the destruction of the house itself, there was proof of loss of V. E. Reese's carpenter tools and certain specified effects belonging to Mattie Reese, the wife of V. E. Reese, which brought the total amount of the destroyed property to something more than seven thousand dollars.

As the verdict of the jury was in plaintiffs' favor and against the individual defendants and the circuit court set aside the verdict, we in the appraisement of this case should apply the rule enunciated in point 1 of the syllabus of the case of Fielder, Adm'x v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115, that: 'Before directing a verdict in defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence', which rule was reiterated and adopted in the cases of State ex rel. Bumgarner v. Sims, Auditor, 139 W.Va. 92, 79 S.E.2d 277; Spence v. Browning Motor Freight Lines, 138 W.Va. 748, 77 S.E.2d 806; Frampton v. Consolidated Bus Lines, 134 W.Va. 815, 823, 62 S.E.2d 126; Laphew v. Consolidated Bus Lines, 133 W.Va. 291, 294, 55 S.E.2d 881; Billy v. Powell, 133 W.Va. 278, 282, 55 S.E.2d 889; and Boyce v. Black, 123 W.Va. 234, pt. 1 syl., 115 S.E.2d 588.

Plaintiffs' case was properly submitted to the jury on the theory embraced in plaintiffs' instruction No. 1 and plaintiffs' instruction No. 4, as amended, both of which were based upon the hypothesis that the jury could find the defendants guilty of primary negligence, if the jury should find from a preponderance of the evidence that the defendants were guilty of primary negligence in that they sold and installed a furnace improperly and negligently in plaintiffs' dwelling house, which negligence was the proximate cause of the fire which destroyed the dwelling house, which instructions submitted to the jury the question whether the plaintiffs, or either of them, were guilty of negligence which proximately contributed to the fire. Likewise the trial court gave proper instructions which fully set forth defendants' theory of defense, which, in particular, submitted to the jury defendants' theory that the jury could find by a preponderance of the evidence that plaintiffs were barred by contributory negligence.

On this writ of error only two questions are presented: (1) Was the evidence contained in this record sufficient from which the jury could find by a preponderance thereof that defendants were guilty of negligence, which proximately caused the fire which destroyed plaintiffs' dwelling house and the contents thereof; and (2) were the plaintiffs themselves guilty of negligence which proximately contributed to plaintiffs' alleged loss.

Some time after the plaintiff, V. E. Reese, had completed substantially the enlargement and improvement of his dwelling house, the plaintiffs entered into a contract with the defendants, Lowry and James, who were engaged in business in the Town of Oak Hill, Fayette County, to install and service furnaces and heating systems, whereby said defendants agreed to install in the basement of plaintiffs' house a forced air heating system for a specified sum. In the latter part of October, 1951, the defendants in furtherance of the provisions of their contract installed in the basement of plaintiffs' home a Kalamazoo hand fired coal burning furnace with blower fan, thermostat, limit and other controls, which consisted of ducts for the transmission of warmed air to the various rooms of the dwelling house and cold air returns. After the installation was made the system was apparently in good operating condition and remained so until two days before the fire which destroyed plaintiffs' dwelling house on December 17, 1951. This appears from the fact that the furnace was operated intermittently from November 10, 1951, the date upon which the installation was completed, until December 17, 1951, the day on which, according to the plaintiff, V. E. Reese, the thermostat regulating the drafts failed to work.

Prior to the installation of the furnace the plaintiff, V. E. Reese, inquired of the defendant, Thomas James, how much space or excavation would be required for a furnace of the kind and size which plaintiffs had purchased. Reese did not know how much space was required to install a furnace, but in making the excavation in the basement of the dwelling house for the purpose of such installation he followed defendant James' directions.

On December 17, 1951, the day of the fire, Mrs. Reese during the early afternoon had left Oak Hill by bus, and her husband, V. E. Reese, after haing his evening meal at the nearby home of his wife's sister returned to the dwelling house about eight o'clock. At that time the weather was cold and there was some snow and a great deal of wind. In order to keep warm, he testified that notwithstanding the thermostat which served to close the drafts on the furnace was not working, he put quite a bit of coal in the furnace, and then went to sleep in the bedroom which was next to the dining-room of the dwelling house and connected with the living-room by French doors. About ten o'clock that night he was awakened by smoke, and going into the dining room he saw fire in the living-room, the flames actually coming up between the boards at a place directly over the furnace. Witness proceeded into the living room with a bucket of water to quench the fire, but was repelled by fire coming through the French doors into the dining room. The fire immediately started to spread rapidly. Notwithstanding neighbors came to Reese's assistance, and later the Oak Hill volunteer fire department came, the house was completely destroyed.

Reese testified that on December 15, 1951, two days before the fire, he discovered that 'the thermostat was not working'; and the draft on the furnace would not close. On December 17, 1951, the day of the fire, Reese gave notice to Mrs. Lowry, wife of the defendant C. H....