Skeen v. C & G Corp.

• Decision Date: 14 December 1971
• Docket Number: No. 12908,12908
• Citation: 155 W.Va. 547,185 S.E.2d 493
• Parties: Hermis H. SKEEN v. C AND G CORPORATION, a corporation, and Casto Trailer Sales, Inc., a corporation.
• Court: West Virginia Supreme Court

Page 493

185 S.E.2d 493

155 W.Va. 547

Hermis H. SKEEN v. C AND G CORPORATION, a corporation, and Casto Trailer Sales,

Inc., a corporation.

No. 12908.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1971.

Decided Dec. 14, 1971.

Syllabus by the Court

1. 'Slight evidence will generally authorize the court to give an instruction presenting the theory of a litigant based thereon.' Dangerfield v. Akers, 127 W.Va. 409 (33 S.E.2d 140).

2. It is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witness regarding them is conflicting and the findings of the jury upon such facts will not ordinarily be disturbed.

3. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts which the jury might properly find under the evidence must be assumed as true.' Point 6, Syllabus, Nesbitt v. Flaccus, 149 W.Va. 65 (138 S.E.2d 859).

4. A jury verdict approved by the trial court should not be set aside on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.

5. At disclaimer provision in a manufacturer's warranty wherein it is declared that such warranty is especially in lieu of all other warranties, express or implied, and all other obligations or liabilities, is an affirmative defense and in accordance with the requirements of Rule 8(c) R.C.P. it must set forth affirmatively in a responsive pleading in order for a manufacturer to avail itself of that defense.

Charles E. Hurt, Charleston, for appellant.

Kay, Casto & Chaney, George S. Sharp, Steptoe & Johnson, Charles W. Yeager, Charleston, for appellees.

CAPLAN, President:

In an action instituted in the Court of Common Pleas of Kanawha County, the plaintiff, Hermis H. Skeen, sought to recover from the defendants, C and G Corporation and Casto Trailer Sales, Inc., manufacturer and retail dealer, respectively, of mobile homes, for the loss of a new mobile home which he had purchased from Casto. Upon trial of the case the jury returned a verdict against both defendants and assessed damages in the sum of $5,487.25, upon which verdict judgment was entered. Subsequently, upon an appeal of this judgment to the Circuit Court of Kanawha County, said judgment was reversed and the case was remanded to the Court of Common Pleas with directions that judgment be entered for C and G Corporation and that Casto Trailer Sales, Inc. be awarded a new trial. Contending that the Circuit Court erred in entering such judgment, the plaintiff prosecutes this appeal.

On March 30, 1964 the plaintiff entered into a contract with Casto Trailer Sales, Inc., for the purchase of a new Baron 51 x 10 mobile home, the price thereof being $4,815.25. This mobile home was manufactured by defendant C and G Corporation and sold to Casto. Pursuant to the contract, on March 31, 1964, the mobile home was delivered to the plaintiff's lot and he and his family moved in. Although the mobile home was completely furnished, it is undisputed that the plaintiff moved in many other items such as appliances, a television set, clothing and other personal belongings.

Upon occupying the mobile home, several defects became evident. The hot water heater did not work; a ceiling light flickered, made noise, burned dim and would not run off; a wall light did not function; and the body of the trailer on the outside conveyed an electric shock upon contract. The plaintiff reported these complaints to Casto and was advised that one of its repairmen would stop by and correct these faults.

On the evening of April 3, 1964, three days later, a Casto repairman came to the plaintiff's mobile home residence and, upon inspection, acknowledged the existence of certain defects. He testified that 'I knocked on the door and when I knocked on the door it shocked me all over.' He said that when you touch the mobile home you get an electric shock. Also, he related that the element in the hot water heater had burned out, although he did not inspect it. Nonetheless, the Casto repairman told the plaintiff to leave the electric current on all night and assured him that the trailer was safe. He advised the plaintiff that he would be back the next day to complete the repairs. On the following day, April 4, 1964, just four days after delivery of the mobile home and before the repairman returned, the trailer and its contents were totally consumed by fire.

In his complaint the plaintiff charged that C and G Corporation was negligent in the manufacture of the trailer and failed to use due care in its construction and testing. He alleged that Casto delivered the trailer in a dangerous condition, having failed to properly inspect it prior thereto. In separate counts the plaintiff further charged that C and G Corporation and Casto warranted the mobile home to be in all respects in good condition and without any substantial defects; that he purchased it in reliance on said warranty; that the mobile home was not in fact in good condition and without substantial defects in that it was dangerous to persons and property when used as a family residence; that they impliedly warranted the mobile home to be suitable, safe and fit for the purpose for which it was designed and sold; and that it was not to suitable and safe, the implied warranty thereby being breached.

It was then related in the complaint, 'the thermostat regulating the heating unit in the said mobile home began to make a clicking noise, that immediately thereafter fire broke out in the wall and ceiling and around the thermostat' and despite the efforts of the plaintiff the home and its contents were totally consumed by fire, resulting in a total loss of $5,920.94.

C and G Corporation filed its motion and amended motion to dismiss the action on the ground that it is a corporation organized and existing under the laws of a state other than the State of West Virginia; that it is not subject to service of process in this state; and that it has not been properly served with process. This motion was overruled by the trial court on January 5, 1967 and the matter raised therein is not an issue on this appeal.

Casto Trailer Sales, Inc. filed an answer to the complaint wherein it denied that it was negligent as charged by the plaintiff. It also asserted against the plaintiff the defenses of contributory negligence and assumption of risk. Also, as a defense, Casto says that there was an express written warranty from C and G Corporation to the plaintiff, which warranty excludes all other warranties and which was not declared upon in plaintiff's complaint.

In addition to its answer to the complaint of the plaintiff, Casto filed a cross-claim against C and G Corporation. Therein it noted that it bought the subject trailer from C and G Corporation for resale; that C and G warranted that the mobile home had been manufactured with reasonable care and was safe and suitable for the use for which it was sold; that it, Casto, had made the usual and customary inspections; that if the plaintiff suffered any loss by reason of any defect, the loss was suffered by reason of the breach of the aforesaid warranty; and that if any judgment be awarded the plaintiff against it, it be awarded a like sum against defendant C and G Corporation.

C and G Corporation answered the cross-claim of Casto denying that it owed any obligation to Casto to indemnify or hold it harmless. That defendant did not file an answer to the plaintiff's complaint until, at the close of the latter's evidence, he was permitted to do so on motion to the court. Therein he denied that the mobile home had been negligently manufactured and tested and denied that it was not in good condition and without substantial defect. The general purport of C and G Corporation's answer to the plaintiff's complaint was to deny negligence.

C and G asserted before the Circuit Court that the trial court had erred in refusing to direct a verdict for it at the conclusion of the plaintiff's evidence and at the conclusion of all the evidence for the reason that the plaintiff had failed to prove any grounds for recovery against C and G. Therefore, it contended that as a matter of law the plaintiff was not entitled to recovery against it. Casto asserted before that court that the plaintiff failed to make a prima facie case against it and that there was no competent evidence that Casto was guilty of negligence which proximately caused or contributed to the damage complained of; also, that there was no competent evidence as to the cause of the fire.

Holding that the defense by C and G involved the disclaimer provision of the manufacturer's warranty, that the disclaimer issue was tried with the implied consent of the parties, that the disclaimer provision eliminated any implied warranty of fitness and that there was absolutely no evidence of negligence on the part of C and G, the Circuit Court on appeal from the trial court reversed the latter's judgment and directed that judgment be entered for C and G Corporation.

On that appeal the Circuit Court further held that Instruction No. 10--A, offered by the plaintiff and given, was not supported by the evidence and that the giving thereof constituted reversible error. By reason of this ruling the judgment against Casto was reversed and remanded to the trial court for a new trial.

Although the plaintiff assigns numerous errors on this appeal, those principally relied on and which are dispositive of this case relate (1) to the Circuit Court's ruling on the disclaimer provision of the manufacturer's warranty and (2) that court's ruling that the giving of plaintiff's Instruction No. 10--A constituted reversible error.

Let us first consider the assignment of error relating to Instruction 10--A. That instruction, as amended, and...