CHARLESTON.

#### Albert P. Welty *et als.,*Partners, *etc. v.*Ben S. Baer, *etc., et al.*

(No. 6321)

Submitted April 9, 1929.

Decided April 16, 1929.

*Nesbitt, Goodwin <& Nesbitt,*for defendant.

*Chas. J. Schenck*and *W. C. Grimes,*for plaintiff.

*227Litz, Judge:

Tbe defendant, Ben S. Baer, obtained this writ to a judgment of tbe circuit court of Obio county against bim, as surviving partner of tbe firm of XJnion Warehouse and Storage Company, composed of bimself and bis brother, Joseph H. Baer, in favor of tbe plaintiffs, Albert P. Welty, Elmer Z. Welty, John H. Welty and Elwood Zoeckler, partners, under tbe firm name of Welty-Buick Motor Company, for $3249.48, in an action of trespass on tbe case.

During a period before and after tbe 15th day of January, 1921, tbe plaintiffs, as tenants of George M. Ford, occupied tbe first three floors and basement of a five-story brick building, 41 feet by 146 feet, in tbe city of Wheeling, West Virginia, in tbe conduct of an automobile business. During tbe same period, tbe Union Warehouse and Storage Company occupied tbe fourth floor of said building, as tenant of tbe owner, George M. Ford, in operating a general storage business. Due to alleged overloading by tbe Storage Company of tbe said fourth floor, on tbe 15th day of January, 1921, an area thereof 21 feet by 28 feet, and its burden, fell,-carrying down with them to tbe basement, similar areas of tbe lower floors and numerous items of personal property belonging to tbe plaintiffs. This action was instituted against Ben S. Baer and George M. Ford to recover for tbe damages to and loss of tbe property of tbe plaintiffs, resulting from tbe crash, and tbe expenses of salvaging tbe articles reclaimed from tbe debris.

Tbe assignments of error challenge, tbe action of tbe trial court in overruling a demurrer to tbe original and amended declarations, and tbe sufficiency of tbe evidence to establish either negligence on tbe part of tbe warehousemen or damages to tbe extent of tbe verdict.

Tbe basis of tbe demurrer is alleged misjoinder: of defendants. Tbe original and amended declarations allege, substantially, that the crash was due to tbe negligent overloading of tbe floor by tbe tenants, Ben S. Baer and Joseph H. Baer (trading as Union Warehouse and Storage Company), with tbe authority, consent and connivance of tbe landlord, George *228M. Ford. This is a sufficient charge against the tenants and landlord as joint tort-feasors. *Brunswick, Balke, Collender Co.*v. *Reese,*69 Wis. 442; 34 N. W. 732; 2 A. S. R., 748. Ford was exonerated.

THE EVIDENCE OF NEGLIGENCE ON THE PART OF THE WAREHOUSEMEN

It is shown by uncontroverted proof that the sagging of the floor where the crash occurred was evidenced by the buckling and parting of the metal ceiling below for a week or two before the accident. Charles B. Hughes, foreman of the plaintiffs, testifies that he advised E. E. Ileatherly, manager for the Storage Company of this situation and that there was too much weight on the floor. The plaintiff, Elwood Zoeckler, who is five feet ten and one-half inches in height, says that the floor where the crash came was packed with sacks of potatoes, boxes of preserves and other articles about as high as he could reach. George T. Digby states that 33,000 pounds of potatoes belonging to him went down with the crash. Henry Elig, who owned the preserves, says there were originally stored a car load containing 900 cases weighing from 75,000 to 85,000 pounds, 80 cases of which had been removed before the accident. Charles B. Hughes, testifies also that only 195 cases were remaining on the fourth floor after the crash. It is also shown that a large quantity of cereals on the fourth floor went down. Peter J. Miller, who, as overseer of the sprinlding system of the building, visited it twice a day, says that the fourth floor was packed with vegetables, groceries and other heavy materials from one end to the other within two or two and a half feet of the sprinkler system, and that he had observed for two or three weeks prior to the accident a sag in the center of the boxes of preserves where the crash occurred. The defendant, Ben S. Baer, testifies that the preserves weighing 79,000 pounds occupied 'a space on the floor of about 20 feet by 20 feet but that the floor should carry 200 pounds per square foot.

Following are the items of damage claimed by the plaintiffs:

> *229Time account for tbe time of employees and partners necessarily employed in tbe working of cleaning up, salvaging, re-inventorying, etc.$ 988.04

> Destruction of wooden bins containing Buick and G. M. C. parts. 207.00 DO

> Loss of an electric armature. 28.63 CO

> Loss of G. M. G. Truck parts. 98.85 Ü

> Loss of Buick parts, kept in bins and carried on cards. 466.72 to

> Merchandise loss (including Buick parts not carried in bins or on cards) 453.21

> Shop equipment loss. 89.37

> Water cooler loss.;. 10.00

> Total.$2,337.32.”

In tbe first item, $650.00 is charged for alleged services rendered by tbe plaintiffs and their office force at tbe rate of $50.00 each person per week. This, in our opinion, is an exorbitant charge. During tbe period for which it is made, the plaintiffs and their office force gave their usual service to the chief business of the firm, the sale of automobiles and motor trucks. Besides, the employees of the Storage Company performed considerable service in clearing the wreckage. The building was repaired by the owner.

In view of this situation and the fact that the verdict exceeds even the amount claimed by the plaintiffs with interest from the date of the accident in the sum of $60.62, we are of opinion to reverse the judgment complained of, set aside the verdict of the jury, and award the defendant, Ben S. Baer, a new trial. The trial court should set aside a verdict clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover. *Pittsburgh-Wheeling Coal Company*v. *Wheeling Public Service Company,*106 W. Va. 206, 145 S. B. 272.

*Judgment reversed; verdict set aside; new trial awarded.*