Roush v. Johnson, s. 10590

• Decision Date: 20 January 1954
• Docket Number: 10591,Nos. 10590,s. 10590
• Citation: 80 S.E.2d 857,139 W.Va. 607
• Parties: ROUSH, v. JOHNSON et al. (two cases).
• Court: West Virginia Supreme Court

Page 857

80 S.E.2d 857

139 W.Va. 607

ROUSH, v. JOHNSON et al. (two cases).

Nos. 10590, 10591.

Supreme Court of Appeals of West Virginia.

Jan. 20, 1954.

Decided March 30, 1954.

Rehearing Denied in No. 10591 May 21, 1954.

Syllabus by the Court.

1. 'Before directing a verdict in a 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 evidenc.' Pt. 1 Syl., Fielder v. Service Cab Co., 122 W.Va. 522 .

2. In an action at law to recover for an alleged wrongful death, negligence of itself is not actionable, and there can be no recovery, unless there is sufficient evidence from which the jury may find by a preponderance thereof that such negligence was the proximate cause of decedent's death.

3. Negligence to constitute the proximate cause of an injury to or the death of another must be such as can reasonably have been anticipated by an ordinarily prudent person.

4. 'Where separate and distinct negligent acts of two or more persons continue unbroken to the instant of an injury, contributing directly and immediately thereto and constituting the effecient cause thereof, such acts constitute the sole proximate cause of the injury.' Pt. 1, Syl., Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739 .

5. "The test of the relation between one having work done and the workmen consists in the employer's right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that of employer and independent contractor'. Greaser v. Appaline Oil Company, 109 W.Va. 396, 155 S.E. 170. The right to control, and not the exercise of control, is the test.' Meyn v. Dulaney-Miller Auto Co., Pt. 2, Syl., 118 W.Va. 545 .

6. It is the general rule, subject to several exceptions, that an independent contractor is not lable for injuries sustained by, or the death of, a third person after the work contracted for has been completed, turned over to the contractee, and accepted by the contractee, though the injury results from the contractor's failure properly to carry out his contract; and when the work contracted to be performed by an independent contractor is completed by the contractor and accepted by the contractee, the latter is responsible for existing defects.

7. Under an exception to the general rule, stated in point 6 of the syllabus of this case, an independent contractor is liable for injuries sustained by, or the death of, a third person, after the work contracted to be performed has been completed, turned over to the contractee, and accepted by him, where the work performed and turned over is inherently and intrinsically dangerous, that is, so defective by reason of the independent contractor's negligence, as to be imminently dangerous to a third person, or where the independent contractor has full knowledge of the defects in the work performed by him, which renders the completed work dangerous to the owner or his invitee, and wilfully conceals the same, or where the dengerous condition of the work caused by the independent contractor's negligence was not known to the contractee, and the defect was so concealed that the contractee would not have discovered it by reasonable inspection.

8. The doctrine of res ipsa loquitur has no application to a case in which the instrumentality causing the alleged injury or death is not under the management and control of the defendant.

9. In an action at law to recover damages for a wrongful death, based upon alleged negligence in the installation of certain electrically operated apparatus and furnaces, in which the doctrine of res ipsa loquitur has no application, it is not reversible error for the trial court to give an instruction which permits the jury to infer on the basis of the doctrine of res ipsa loquitur that defendant was guilty of negligence which proximately caused decedent's death, where the hypothesis upon which the jury was permitted to draw such inference was that if the jury should believe 'from all the evidence in this case, the defendants or either of them used improper care' in the installation of the electrically operated apparatus and furnaces, which 'was the proximate cause of decedent's death, * * *.'

10. It is not error for a trial court in an action at law to recover damages for wrongful death to give an instruction which directs the jury to find for the plaintiff if certain facts recited in the instruction are believed by the jury from the evidence, which instruction does not specifically negative contributory negligence on the part of the plaintiff, where the record contains no probative evidence from which it would be proper for the jury to find that plaintiff's decedent was guilty of contributory negligence.

11. It is not reversible error for a trial court to refuse to give instructions which are not supported by the evidence.

12. 'To warrant a finding that negligence is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligent act and that it ought to have been foreseen in the light of the attending circumstances.' Matthews v. Cumberland & Allegheny Gas Co. , pt. 3, syl.

Jackson, Kelly, Holt & Moxley, W. T. O'Farrell, W. J. Carter, Charleston, for plaintiff in error, Woodrum Home Outfitting Co., a corporation.

Edwin O. Thornhill, Charleston, for plaintiff in error, Dewey R. Johnson, d. b. a. West Virginia Distributing Co.

Kay, Casto & Chaney, Dale G. Casto, Charleston, for defendant in error.

RILEY, Judge.

Ottie C. Roush, administrator of the estate of Roy Jeffers, deceased, instituted in the Court of Common Pleas of Kanawha County this action of trespass on the case against Dewey R. Johnson, doing business as West Virginia Distributing Company, and Woodrum Home Outfitting Company, a corporation, hereinafter referred to as the 'distributing company' and the 'outfitting company', respectively, to recover damages for the alleged wrongful death of plaintiff's decedent by electrocution. To a judgment in the plaintiff's favor and against the defendants in the amount of ten thousand dollars, the defendants prosecute separate writs of error to this Court to the judgment of the Circuit Court of Kanawha County, refusing writs of error and supersedeas to the judgment of the Court of Common pleas of Kanawha County as plainly right.

The declaration is in three counts. The first court charges negligence on the part of the distributing company in its installation in September, 1948, of an electric compressor and cooler in the store building owned by Kenton (referred to in the declaration and sometimes in the briefs as 'Kenneth') and Bess Garton, located on Field's Creek, Cabin Creek District, Kanawha County; the second count charges that the outfitting company was negligent in the installation in November, 1949, of three electrically operated gas floor furnaces in the storeroom and dwelling house connected therewith owned by the Gartons; and the third count is a consolidation of the first and second counts. All three counts of the declaration charge that the negligence alleged therein proximately caused the decedent's death by electrocution.

After setting out the appointment and qualification of the administrator in July, 1950, the third count of the declaration alleges, in substance, that on or about the 11th day of July, 1950, the date on which decedent was electrocuted, and for a long time prior thereto, the distributing company had been engaged in selling and installing compressors and coolers, and the outfitting company had been engaged in selling and installing electrically controlled gas floor furnaces; that Kenneth and Bess Garton were the 'owners of a certain building used as a dwelling house and storeroom [the two buildings then being connected], situate on Field's Creek, Cabin Creek District, Kanawha County,' in which store building they 'operated a grocery store'; that the dwelling and the store building were 'properly and carefully wired for the use of electricity including a switch which was placed on the inside wall of a wareroom in said building used in connection with said storeroom.'

The third count alleges that on or about the ___ day of September, 1948, the distributing company sold Bess Garton, doing business as 'Garton's Grocery', an electrically operated refrigeration unit known as a compressor and beer cooler, and agreed to install the same in the Garton store in a safe and proper manner; that it then and there became and was the duty of the distributing company to install the compressor and cooler in a careful and prudent manner so as not to create a dangerous instrumentality; that not regarding such duty, but in utter disregard thereof, the distributing company carelessly installed the compressor and cooler in such manner that the apparatus was negligently connected with the main switch and fuse box, hereinafter referred to as the 'main switch box', so that the compressor and cooler were not protected by the fuses and the switch provided for that purpose, and thereby a dangerous and hazardous instrumentality was created.

The third count of the declaration alleges that in November, 1949, the outfitting company sold to the Gartons and agreed to install in the Garton dwelling and store building in a safe and proper manner three electrically controlled gas floor furnaces; that it then and there became and was the duty of the outfitting company to install the furnaces in a careful and prudent manner; that not regarding such duty, but in utter disregard thereof, the outfitting company negligently and unskillfully connected with 'a switch box installed by' the distributing company, causing a copper tube leading from the compressor to the cooler 'to be charged...