Wingrove v. Home Land Co.
Decision Date | 09 April 1938 |
Docket Number | 8697. |
Citation | 196 S.E. 563,120 W.Va. 100 |
Parties | WINGROVE v. HOME LAND CO. et al. |
Court | West Virginia Supreme Court |
Submitted March 23, 1938.
Syllabus by the Court.
1. A lessor of property, who voluntarily makes repairs to the leased premises, is liable to an invitee of the lessee for injuries sustained thereon, occasioned by the negligence of the lessor in making such repairs.
2. A member of the family or an invited guest of a customer of a gasoline filling station is an invitee of the operator of the station, and may recover for injuries sustained thereon occasioned by the negligent failure of such operator to keep the station in a reasonably safe condition for the uses to which it is devoted.
3. In an action to recover damages for injuries resulting in death alleged to have been occasioned by a negligent act of the defendant, the burden is on the plaintiff to establish, not only the negligence charged, but also that the same was the proximate cause of death.
Error to Circuit Court, Fayette County.
Suit by A. A. Wingrove, administrator of the estate of J. E Wingrove, deceased, against the Home Land Company and another for damages for death of deceased. To review a judgment in favor of the defendants, the plaintiff brings error.
Affirmed.
W. W Goldsmith, of Beckley, and Wm. G. Thompson, of Montgomery, for plaintiff in error.
Love & Love, of Fayetteville, for defendants in error.
A. A. Wingrove, administrator of the estate of J. E. Wingrove, deceased, instituted this suit in the circuit court of Fayette county against the Home Land Company and H. H. O Neal to recover damages for their alleged negligence which, it is claimed, resulted in the death of his decedent. There was no appearance on the part of O'Neal. The Home Land Company filed its demurrer to the original declaration which was sustained. An amended declaration was then filed, a demurrer thereto overruled, and a plea of not guilty filed. The case was tried by a jury, and at the completion of the testimony, upon motion of the defendant, a verdict was directed and returned in its favor, and judgment entered thereon. To this judgment, the plaintiff prosecutes this writ of error.
The facts necessary to be considered in arriving at a decision on the points raised are as follows:
The Home Land Company is the owner of certain real estate in the town of Fayetteville on which it erected a gasoline filling station, and leased the same to H. H. O'Neal by written agreement dated November 15, 1934. Under the terms of the lease, the lessee agreed to pay to the lessor monthly 1 1/2 cents per gallon for all gasoline sold, with provision for a minimum monthly rental of $65. It was stipulated therein that upon the expiration of the lease the "* * * Lessee is to return the property and equipment herein described to Lessor and Lessee shall restore said premises to the condition existing on the date when Lessee takes possession of the premises, ordinary wear and tear only excepted, provided, however, Lessee shall not be required to replace and relocate any buildings, tanks, structures or machinery removed or relocated with the express consent of Lessor." Later, the premises were sublet to C. M. Jarrell, who was operating the station at the time of the injury complained of, but Jarrell is not a party to this action. About February, 1936, the pipe connections of two of the tanks located in the filling station became broken, supposedly on account of freezing, and the tanks being entirely covered by a concrete pavement, it was necessary to break the concrete at two points in order to restore the connections. The necessity for the repairs was made known to the Home Land Company, the landlord, and it undertook the work of making the necessary repairs. The concrete was broken, considerable earth removed, the necessary repairs made, and the earth, or part of it, returned to the excavation and limestone chips used which raised the level at that point above the surrounding concrete. The ground later settled some 2 or 3 inches below the level of the pavement. The testimony is that notice of this settling was given to the Home Land Company and that, through its agent, it, in effect, promised to correct the situation, but did not do so. The strips of concrete removed were parallel, about 8 feet long and approximately 20 inches wide. Under these conditions, on Saturday, the 2d day of May, 1936, about 8 o'clock in the evening, Alf Davis drove his automobile into the filling station and drove the front wheels thereof over one of the depressions mentioned and onto a strip of pavement some 2 feet wide between the two depressions. He was accompanied by J. E. Wingrove, plaintiff's decedent, who apparently was his guest. Davis purchased a quart of oil, and at some time, whether before or after the purchase had been consummated, Wingrove, according to his statement to Davis immediately after the accident, decided to visit one of the toilets in the filling station, opened the car door, and, it is contended, backed out of the car onto the concrete. The evidence indicates that he had succeeded in getting out of the car onto the concrete, and then took a step into one of the depressions in the pavement, causing him to turn his ankle, lose his balance, and fall forward toward the front of the car. In some way, not exactly known, but presumably by coming in contact with the license plate on the front of the car, his right wrist was cut, causing a deep wound. Immediately after the accident, Wingrove went to a water spigot on the station premises and washed the wound. Friction tape, commonly used for wrapping electric wires, was used to wrap the wound, and he then left the station, and was taken to his boarding house. Davis suggested to Wingrove that he visit a doctor, who was located some 300 feet from the boarding house, but he did not do so, saying he thought he would be all right. About 2 o'clock the next morning, Wingrove was seen at a lunch room in Oak Hill. At that time, he had blood on his face, there was mud on his clothes, and the proprietor of the lunch room cleaned him up, washed the blood off his arm and wiped it with a paper towel. About 3 o'clock on the same morning, Wingrove was seen at Craigo's place on the outskirts of Fayetteville. At that time, the black friction tape which had been wrapped around the wound at the filling station had, according to the testimony of one witness, worked down into the cut on his wrist, and some one applied a salve to the wound, and a gauze bandage fastened with adhesive tape. He remained at Craigo's place until about 5 o'clock in the morning, but later, about 9 or 10 o'clock, he returned there and then went to a place called Shady Rest, located between Fayetteville and Oak Hill, where he went to bed and slept during the afternoon and until late at night, when he returned to his boarding house in Fayetteville. He first saw a doctor about 11 o'clock on the night of Sunday, May 3d, at least 26 hours after the accident at the filling station, and by that time the wound on his arm had become infected and was showing signs of blood poisoning. Approved methods of treatment were then applied, and on the day following, Wingrove went to the hospital and had the wound dressed. He returned to the hospital on May 6th, and remained there until his death on May 12th. It is apparently conceded that his death resulted from blood poisoning.
Three outstanding questions are presented: (1) The liability of the lessor, in any event, under the terms of its lease to O'Neal, and its voluntary act in assuming to repair the premises; (2) whether the deceased was an invitee to whom the defendants owed the duty of keeping the filling station in a reasonable state of repair, or a mere licensee, to whom they owed no duty other than to avoid wanton or willful injury; and (3) whether there was such connection between the injury sustained by the decedent and his death as would have justified the jury in finding that his death resulted from the injury complained of.
It is contended by the Home Land Company that it is in no event liable to the plaintiff, because liability, if any, rests on its lessee under the terms of its lease; that it had no responsibility for the repairs made, and is not liable for any negligence in connection therewith, even though its voluntary action with respect to such repairs be admitted. It may be true that under the terms of the lease, the lessor was not bound to make repairs, and that if the lessee had allowed the premises to reach a condition such as to make them dangerous, it was his responsibility, not that of the lessor. However, the record shows (1) that the lessor was interested in having the two tanks repaired, because the income from the station depended upon the sales of gasoline, and it is apparent, of course, that where tanks are used to store different kinds and grades of gasoline, as they were in this case, if two of the three tanks were out of use, the sales of gasoline would necessarily be reduced because sales would be limited to a single grade; and (2) it is also shown that under these circumstances, the Home Land Company voluntarily, and in its own interest, undertook to make the repairs. Even if the duty rested upon the lessee to make...
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