Opinion
Submitted Sept. 1, 1954.
Rehearing Granted Nov. 22, 1954.
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
Page 694
v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115.
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. 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 set aside 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 Kalamazzo 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 negligent 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, including a bath and porch, the improvements resulting in elarging 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 v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115, 116, that: '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 evidence', which rule was reiterated and adopted in the cases of State ex rel. Bumgarner v. Sims, Auditor, W.Va., 79 S.E.2d 277; Spence v. Browning Motor Freight Lines, W.Va., 77 S.E.2d 806, 809; 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., 15 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 prima facie 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 plaintiffs were guilty of negligence, which proximately contributed to the fire which destroyed their dwelling house and the contents thereof; and (2) whether the plaintiffs themselves were guilty of negligence which proximately contributed to plaintiffs' alleged loss.
Under the postulate imbedded in the practice and procedure of this State set forth in point 1 of the syllabus of the case of Fielder v. Service Cab Co., supra, and kindred cases, in the determination of the two basic questions before us, we are at liberty to, and should, as the trial court should have done in the first instance, entertain every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, and should assume as true those facts which the jury may properly find under the evidence. This, of course, will not necessitate a detailed statement of all the evidence contained in this record.
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 of the one purchased by the plaintiffs. 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 defendants' 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 having 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 draft in 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 thermostant 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. Lowry, and sister of the other defendant, Thomas James, that the drafts on the furnace would not operate and that the thermostat was not working. He did not, however, testify, as stated in plaintiffs' brief, that Mrs. Lowry promised that the defendant would be 'out the same day'.
The evidence, bearing directly on the question whether the evidence tending to establish that defendants were guilty of primary negligence, which proximately caused the fire which destroyed plaintiffs' dwelling house, is sufficient for jury determination, is in direct conflict. Though the evidence varies in minor details, there is probative evidence contained in this regard to the effect that the space between the top of the furnace, or the plenum from which the hot air is distributed, was from one inch to an inch and a half from the joists, and that there was no asbestos or other fire resisting material above the furnace on the joists, or sand, as was usual in the case of furnaces of older makes, on top of the furnace. Likewise there is evidence, probative in its nature, which tends to show that the top of the furnace between the joists and between the pipe leading to the chimney from the furnace was hot. Plaintiffs' witness, Thomas Whelan, a resident of Charleston, West Virginia, who had about twenty-seven years in the plumbing and heating business, testified that in his opinion the fire was caused by the furnace and plenum being too close to the wall; and assuming that the thermostat and drafts were not operating, as he was asked to assume, the fire was caused by the heat generated in the furnace. Also plaintiffs' witness, Benjamin F. Bragg, a first cousin of the plaintiff, Mattie Reese, who lived next door to the Reeses for about ten years, testified that he received burns when he put his hand between the ducts, which conduct the heat from the furnace to the rooms of the house, and the joists; and that the top of the furnace was so hot that witness could not keep his hand on it.
A further and more detailed statement of the facts portrayed by this record bearing on the question of primary negligence and proximate cause is unnecessary under the holding of this Court in the case of Fielder v. Service Cab Co., supra, and the kindred cases heretofore cited.
Having reviewed this record carefully, we are of opinion that it contains sufficient probative evidence which would entitle the jury to find that the defendants, C. H. Lowry and Thomas James, partners doing business as Kalamazoo Sales and Service Company of Oak Hill, are guilty of negligence in the installation of the furnace in plaintiffs' dwelling house, which proximately caused the total destruction of the dwelling house by fire. That being so, the trial court erred in setting aside the verdict of the jury in plaintiffs' favor and granting the defendants, C. H. Lowry and Thomas James, partners as aforesaid, a new trial, unless, as a matter of law, the plaintiffs themselves were guilty of negligence which proximately contributed to the burning of their dwelling house.
This record contains sufficient evidence from which the jury could have found that the plaintiff, V. E. Reese, knew, or should have known by the exercise of reasonable care, that the heat generated by the fire in the furnace on the night plaintiffs' dwelling house was burned would have thrown sufficient heat on the floor and joists immediately above the furnace, so that he could reasonably have anticipated it would set fire to the floor and joists and ultimately destroy the plaintiffs' dwelling house.
The ruling of the trial court, however, in setting aside the verdict of the jury in plaintiffs' favor presents the question whether the evidence contained in the record is insufficient to justify the jury in finding that the plaintiff, V. E. Reese, was guilty of negligence which proximately contributed to the destruction of plaintiffs' home. Where, in an action to recover damages for negligence, the plaintiff has proved for jury determination that the defendant was guilty of actionable negligence, and the defendant relies upon the defense of contributory negligence, the defendant has the burden of proving that plaintiff was guilty of negligence which proximately contributed to plaintiffs' injury, unless such negligence is disclosed by plaintiff's evidence, or may be fairly inferred from the circumstances portrayed by the record. An axiom in the law of tort liability is that in an action for negligence, contributory negligence is a matter of defense, the burden of proving which is on the defendant, and the plaintiff is not required to prove the absence of contributory negligence as a part of his case. Dye v. Rathbone, 102 W.Va. 386, 135 S.E. 274; Bartley v. Western Maryland Ry. Co., 81 W.Va. 795, 95 S.E. 443; Riley v. West Virginia Central & P. Ry. Co., 27 W.Va. 145. That contributory negligence of the plaintiff in an action to recover damages for negligence is an affirmative defense, and that where the defendant relies on contributory negligence of the plaintiff as a bar to recovery, the burden of proof rests upon the defendant to show such negligence, unless contributory negligence is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the circumstances, see 13 M.J., Negligence, Section 56, and cases cited under notes 8 and 9.
At this point it is well to review the evidence contained in this record bearing on the question whether there is sufficient evidence for the jury to find by a preponderance thereof that the plaintiff, V. E. Reese, was guilty of contributory negligence which proximately contributed to the fire.
The plaintiff, V. E. Reese, testified that when he decided to purchase a furnace for his home, he consulted with the defendants, Lowry and James, and in particular with James; that he did not know anything about furnaces, but asked James about installing a furnace in the house, and 'about what it would take, and he [James] advised me the kind of furnace that he also later installed'; that he asked James how much excavation was needed for the furnace; and that he made the excavation to the depth specified by James. Reese further testified that having discovered that the thermostat appliance on the furnace was not working, and that the duct running to the bathroom was pulled apart, on the afternoon of the day of the fire he reported the defect to the wife of the defendant Lowry at the office of the defendants, and he was informed that she would tell the partners, but witness was not given any warning not to use the furnace after that.
On cross-examination Reese testified that James had told him 'how much to dig out in the basement for the furnace'; that he 'did dig the right distance he [James] told me, whatever he told me, and poured the base.' Reese discovered that the thermostat did not operate, so that the draft stayed open all the time, a condition which he discovered two days before the house burned; and that he tried manually to close the draft without success. On redirect examination Reese testified that he had no knowledge that by putting coal in the furnace on Monday night, the night of the fire, that that would cause the house to burn.
From the record it appears that both the defendants, Lowry and James, were skilled in the art of installing furnaces such as the one installed in plaintiffs' house. James testified that he had been engaged in the appliance and home heating business for a little over three and a half years; and that in 1951 he and Lowry, as partners, sold the furnace to the Reeses. He also testified that he had training in the installation of furnaces such as the one installed in the Reese house, 'primarily of the figuring of heat losses, and sizes of furnaces, and the layout of furnace jobs'; and that the actual installation of the furnace in the Reese house was done by defendants, Lowry and James, witness Eric Anderson, with said defendants' witness Dallas Stotts as a helper.
The defendant Lowry testified that he started in the appliance and heating business at Oak Hill with his brother-in-law, the defendant, James, in September, 1949; that he had nothing to do with the installation of the furnace in the plaintiffs' house; that he did not recall any conversation with the plaintiff, V. E. Reese, as to the depth of the pit required for the installation of the furance; that he made several trips with the men in the morning and in the evening during the course of the installation of the furnace; and that he had examined the width or distance between the lip around the plenum chamber and the joists above it, which he estimated to be about three inches.
The individual defendants' witness, Eric Anderson, who had installed the furnace for them, testified that he had been working in the business of installing furnaces of the type installed in the Reese house for about ten years; that the Reese furnace was installed so that the top of the plenum chamber was about three inches from the joists. This witness testified that he had studied the instructions as to the installation of Kalamazoo furnaces of the type of furnace installed in the Reese house, which instructions were issued by the manufacturer. The witness did not test the heat of the furnace with his hand in order to set the heat controls for 'The controls is set from the factory.'
A review of the record convinces us that this case, both on the question whether defendants were guilty of primary negligence and whether plaintiffs were barred from recovery on the theory that plaintiff, V. E. Reese, was guilty of negligence which proximately contributed to the fire, was one for jury determination. The trial court in setting aside the verdict in favor of the plaintiffs, in our opinion, clearly invaded the province of the jury. Though we are well aware of the rule of practice prevailing in this jurisdiction that a trial court's action in setting aside a verdict for the plaintiff is entitled to peculiar weight on writ of error, Flinn v. Henthrone, 114 W.Va. 807, 173 S.E. 882; Rush v. Buckles, 93 W.Va. 493, 117 S.E. 130, a trial court's order setting aside a verdict in a plaintiff's favor will, nevertheless, be set aside by this Court on writ of error, when a consideration of all of the evidence clearly shows that the case was properly one for jury determination. Flinn v. Henthorne, supra.
We therefore reverse the judgment of the Circuit Court of Fayette County, in setting aside the verdict of the jury in plaintiffs' favor, and awarding a new trial, reinstate the verdict of the jury, and enter judgment on the verdict in this Court.
Judgment reversed; verdict of the jury reinstated; judgment entered on the verdict in this Court.