*1 pertaining to the material facts that some We feel above, are in copiously forth question, set agency conflicting inference sharp from them and that conflict facts, Upon development of the full drawn. could be reasonably jury might many disputed, which are the acting within the Maynard were brothers infer that might employment. inference an scope their Such appearing undisputed evidence be drawn from even job at the site had been violence in the record that there photo- before, photographer hired day that a day may graph occur on the violence that brought in to the site killing, Maynards that were state, Maynards job site out of that from another truck, Maynard shotguns Arlie in their two had shotgun possession, violence did shells in his had shotguns Maynard occur, fired their brothers group pickets, that William Denver Cre- into was killed. means
Only where the evidence conclu- in those rare cases authority conflicting sively and where in- lack of shows decide the cannot be drawn should Court ferences conflicting there are inferences which issue. Because evidence, and since there is dis- be drawn from the can evidence, puted be reversed and remand- this case must opinion. proceedings with this for further consistent ed Reversed and remanded. Cochran, et al. Newman Appalachian Power Co. 13788)
(No. July 11,
Decided 1978. *2 Smith, Jr., Rumora, Williamson, W. Graham Smith & Tutwiler, Tutwiler, Charles A. Crockett & LaCaria for appellant. Shinaberry, Shinaberry appel-
Sterl F. Hostler & lees.
McGraw, Justice:
Appellee, Cochran, operator of a small coal mine Chattaroy Hollow, County, Mingo Virginia, West on Octo- 14, 1958, Appalachian ber into entered a contract with (Power Company Company) by which the Power Company agreed put poles to and electric lines to his $2,300.00. making payment, mine sum After he given receipt provided $2,300.00 was which that this subject According “is not to refund.” to Cochran’s undis- evidence, puted began operating he after mine operate was installed and continued to on an early In 1965 and
irregular until 1966. basis and the disagreement Cochran some between there was not he was in arrears Company over whether or contending electricity, payment for his Cochran contending Company overpaid he had and the Power he money. The evidence indicates owed it still any notice, giving the Power March without going lines to the Company pulled on the the cutouts electricity equipment certain cut off the while mines and electricity in the mines. Since the Cochran’s remained operate, off, pumps unable cut water were accumulated, up and the mine covered water inside Cochran, after damaged equipment and material. electricity off, cut went learning had been attempted Company representatives the Power Company power, but the Power re- get them to restore deposit from Two fused to do so without Cochran. May, received a check later months overpayment representing an from the Power *3 by prior service. him of his electric evidence,
According undisputed made to his Cochran get attempt to to trips to the several 3, power to mine March 1966 and to restore the between Company, the without 1968. In October notice, poles leading giving removed the electric to replace mine refused to them. the Cochran and 3, 1970, Appellee Cochran, a civil on March instituted Company in the Court against the Power Circuit action damages by County the ter- occasioned of McDowell complaint, mine. to his mination of electrical service alleged in full that: (1) plaintiffs the or about October On the into a contract with defendant entered power
whereby agreed install the to defendant power operated supply line and for the mines by plaintiffs located on Buffalo Creek the and County, Virginia. installing the Mingo For West power line, plaintiffs paid com- to the defendant Twenty-three pany Hundred Dollars the sum of ($2300.00), paid power supplied and to them monthly on a basis.
(2) 6, 1968, notify- or about On March without ing plaintiffs agreement and in violation of the plaintiffs into entered between the and de- the fendant, acting through the agents, defendant its wilfully, employees, wantonly and servants negligently power the removed line which it had pursuant agreement installed to the reached on 14, 1958, supply October the terminated by the ran plaintiffs. mines the theAt taken, plaintiffs time such action was the had mining equipment numerous items of the inside consequence mines and as a the action taken defendant, plaintiffs the could not remove equipment said from the mines and it se- was verely damaged being prolonged from for a left period Further, in the plain- mines. because the equipment mines, tiffs’ plaintiffs was required paying royalty were to continue on they further, which lease had and as a re- sult, plaintiffs monetary suffered loss operate mines, able their all to ex- tent of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00). WHEREFORE, plaintiffs judgment demand
against the defendant for the sum of TWENTY- ($25,000.00), plus FIVE THOUSAND DOLLARS and their interest costs of action. by jury.
Plaintiffs demand trial only presented by At trial party evidence either damages who, issue of detail- after ing background experience dealing with mine equipment type involved, testified as to the value *4 mining equipment destroyed of each item of that was in by electricity. the mine the discontinuation of He fur- property royal- ther testified about taxes and minimum pay during period ties he equip- had to the of time his property ment remained on the leased due to lack the of electricity. damages The total contended for at close the $7,474.00, of Cochran’s evidence was which consisted of $2,300.00 of the following: for the installation the $1,200.00 Company; for the Power that was removed years during which the royalties the paid on the lease electricity the operated as a result of mine could not be pursu- terminated; paid property in taxes $124.00 Jeffrey lease; for a 35-B ant to the terms $500.00 motor; conveyor machine; and cutting for $600.00 cable; $1,600.00 conveyor machine cable and $500.00 cars; steel; mining for two for 20 tons $500.00 Company pump. appellant for one $150.00 damages. regarding kind offered no evidence Compa- evidence, the Power At the close of Cochran’s plea the statute ny the first time a asserted verdict a motion for a directed limitations and made upon ground the upon ground testimo- damages legally ny support was not in offered motions were over- an award. These sufficient to sustain they again later when were at that time and then ruled all the evidence. at the close of renewed assigns as error Appellant Power now following: overruling the mo- The trial court erred
1. Company made at the that Power tion to dismiss again at the plaintiff’s evidence and close of the ground of all the evidence on close two-year tort statute relief was barred limitations. allowing erred in 2. The trial court monetary testify objection dam- as to the over mining equipment.
ages to his refusing to strike the The trial court erred 3. $2,300.00 from the ad damnum clause sum of complaint. refusing give De- 4. The trial court erred B I. fendant’s Instructions Nos. giving Plaintiff’s In- trial court erred in
5. The Nos. 2 and 3. structions *5 6. The trial granting court erred in not Power Company’s motion remittitur to an amount $1,324.00. to exceed assignment In their Company first of error the Power argues action, sounding that tort, this is barred two-year limitations, Code, tort statute of WfVa. 55- 5-2, and that failing grant the trial erred in court a motion to that Company dismiss the Power made at the of close Cochran’s case and renewed at the close all Company evidence. Power raised defense affirmative of statute of limitations for the first time this motion appear any pleading dismiss. It does not it filed. Company that contends this civil filed action was 4, 1970, on March power actually and that was terminat- ed on March arguing complaint 1966. In that al- leges tort, emphasizes a it wording part of Coch- complaint alleges ran’s wherein he that on or about 6, 1968, March Company “wilfully, wantonly the Power negligently power removed the line ... and termi- power supply nated the to the mines ....” 8(c) Virginia Rule of the West Rules of Civil Procedure provides that: (c) pleading pre- In to a Affirmative Defenses.
ceding pleading, party shall set forth affirma- tively ... statute ... limitation other constituting matter an avoidance or affirm- ative defense. response rule,
In to this argues that erroneously alleges power Cochran’s 6, 1968, terminated on March and that until Cochran’s brought evidence was forth was unaware reality 3, 1966, was in exactly terminated on March four years before the action was filed. Willis, (1960)
In Carter v.
145 W. Va.
applicable
recovery
this Court discussed the
theories
public utility
properly
when
supply
fails to
the custom-
plaintiff
sought
er. In
utility’s
Carter
relief for the
supply enough
783-84,
failure to
water. At
It arises is true the de- wherein plaintiff and defendant between supply plaintiff an agreed to with fendant in return for a mone- adequate amount water Nevertheless, tary a situa- such consideration. may, option, maintain an at his tion the contract, contractu, action, breach of or an ex delicto, duty, where the ex for breach of action *6 comply with the negligently fails defendant of his terms contract. alleges complaint paragraph of the the
The first contract,” alleges parties a and the second “entered into agreement wrongful en- termination “in violation of the complaint, forth above into.” feel that the set tered We full, clearly unambiguously alleged a breach of in and contract. apparently clear to the Power
This was at one time in its Company as well its answer admits second since question in but the existence of the contract defense in “affirmatively removed line a [it] avers that its regard rights all ... proper manner ... with due for and ... Newman Coch- under the contract between [it] Furthermore, it “affirma- ...” in its third defense ran complete tively alleges, defense to the as a full and fully, respects the ... was in all claim ... contract by carefully completely and carried out [it] executed “wilfully, wantonly language, But what about summary appearing complaint? A of negligently,” in the § 1in Am Jur.2d Actions 8 the relevant law is set forth (1962) as follows: plead- If the action is not maintainable without contract, gist ing proving where the of contract, either is the breach action nonfeasance, is, substance, malfeasance or may contract, on the whatever be an action pleading. states a form of the If contract, additional cause action breach of of for appropriate a cause action averments
wrong not the cause action into one will convert
93
tort,
part
pleading appropriate
and the
to an
surplusage.
action in tort will he considered
though
may
And even
an
action
be
the form of
tort, yet,
subject
contract,
if the
of it is based on
action will be attended
all the
incidents
contractu,
added.)
an
(emphasis
action ex
jurisdictions
addressing
Most
the issue have held that
that could be construed
either
tort or
presumed
on contract will be
be
contract.
See, e.g.,
Johnson,
76,
McClure v.
50 Ariz.
We thus hold that a be could construed being as presumed either in tort or on contract will be to be on contract whenever action would be barred the statute of limitation if construed as in tort. In this case we find no reversible error trial court’s ruling point on this below. Company’s assignment second of error is based
upon general, unexplained objections it made at trial testimony regarding Cochran’s the value of certain ma- chinery and material lost the mine. Each of these general objections overruled, per- and Cochran was opinion mitted to state his of the values of various property destroyed. articles of The almost universal rule appellate is that an grounds court need not consider of objection presented See, e.g., not to the trial court. An-
94 2253, States, 417, 211, 41 94 S. Ct. v. U.S.
derson United (4th 1973); (1974), aff'g. F. W. 481 2d 685 Cir. L. 20 Ed.2d Nevertheless, deal with Power we will R.C.P. 46. Va. they objection on its behalf and assume Company’s testify competency Cochran to as were directed to destroyed by in the equipment water of his to the value mine. opinion firmly in this state that “[t]he
It is
established
may
expert
given in evi-
is not an
be
of witness who
a
peculiar knowledge or more knowl-
if
has
dence
he
some
jurors
subject
opinion
edge concerning
of the
than
Shannondale,
ordinarily
v.
expected to have.” Moore
are
syl.
113,
(1968), citing
549, 566,
124
165 S.E.2d
152
Va.W.
Fields,
797,
S.E.2d 598
pt. 4,
145 W. Va.
117
Overton v.
152,
Oshel,
syl.
8,
Va.
89
(1960);
pt.
Toppins v.
141 W.
(1955); syl.
7,
Hope
v.
pt.
Stenger
Natural Gas
S.E.2d 359
syl.
Co.,
(1954);
pt.
Lively
139 Va.
sufficient opinion largely qualified give his is be the trial court and will the discretion within appeal ordinarily unless be disturbed clearly prejudicially erroneous. princi-
Therefore, longstanding, undisputed under above, ples we find no abuse discretion enunciated give opinion letting trial court destroyed property.1 Mollohan v. Black See value additionally during cross-examination made *8 testimony ground on the that he Cochran’s “motion dismiss” opinion wrong arriving employed at of the “fair standard in destroyed equipment. When asked to define market value” of the “Well, you cheapest replied, can value” he its “fair market universally being buy defined as The been almost it for.” term has _ W. Contracting, Inc., _, Rock Va.
(1977). Company’s assignment
Power third of error is without alleges merit. paid in his that he Company $2,300.00 installing Power power. electrical receipt payment provided money for such that “the paid by you subject herewith is not to refund ....” Pow- Company argues er solely upon receipt the basis of this paid this amount for the installation lines should not damages. have been included as recoverable Surely provision apply “no refund” was intended to long by so as the Company. contract was fulfilled It made clear that if electrical accordingly services were provided, $2,300.00 then the would not be refunded at the termination of the contract. But support we find no for the court, solely contention that the trial because of provision, $2,300.00 such a should strike the from the ad complaint. damnum clause of the Having point, found must, by no error on this we ne- cessity give affirm the trial court’s refusal Defen- dant’s jury Instruction No. I which instructed $2,300.00 disregard paid by Cochran under the con- complained tract. The other instruction of in Power Company’s assignment fourth dealing error with proximate injuries, properly cause and refused due to the total regarding injury. absence evidence Furthermore, given, Plaintiffs Instruction which was properly regarding states the law causation dam- ages thereby unnecessary repetitious renders Defendant’s Instruction No. B.
Plaintiffs
complained
Instructions
2Nos.
and 32 are
Company’s
assignment
in Power
fifth
or error as
price
bring
desires,
it will
when offered for sale
one who
but
obliged,
it,
bought
is not
to sell
and is
one
is under
who
no
necessity
buying
See, e.g.,
City
it.
American Viscose Co. v.
Roanoke,
(1964)
205 Va.
96 disagree, holding abstract, duplicitious. binding, We and proper statements to and distinct the instructions be granting finding the trial court’s no error in the law and of those instructions. failing grant to
Finally,
did not err
the trial court
Company’s
remittitur
to an amount
motion for
Power
(the
royalty
$1,324.00
of minimum
not
exceed
sum
to
above,
years). As
for four
discussed
payments
and taxes
additionally
brought
forth
competent
evidence was
destroyed machinery
to
of his
as
the value
Thus,
ample
mining equipment.
there was
evidence to
Court,
jury’s
$5,000.00.
This
support
verdict
definitely
in a
a
is excessive
faced with
verdict
amount,
no error
in the trial
can find
ascertainable
grant
Jordan
the motion for remittitur.
court’s failure to
_
(1974);
Bero,
W. Va _,
Earl T.
210
618
v.
S.E.2d
Co.,
County
145 Va.
Browder,
Inc.
W.
Court Webster
696,
Affirmed. dissenting: Neely, Justice, syl. pt. wrong grounds 1 is
I on the dissent appellant granted the Pow- court have the lower should Company’s to on statute limitations er motion dismiss provide plaintiff a amount of with sufficient care at all times to electricity plaintiff operate his coal mine. to enable to INSTRUCTION NO. PLAINTIFF’S defendant, Appalachian jury that Court instructs The plaintiff’s monopoly Company, mine had in the area where supplying electricity to customers and said electric located for was regulations approved by operated Company under rules and Virginia; and, as an of the State of West Public Service Commission circumstances, Company operating the defend- under electric quan- plaintiff electricity required supply in sufficient ant to to was plaintiff, tity operate belonging and the defendant the mines long supply right mines so the electric to said had no terminate payment of bills owed to the was current defendant. grounds. appellee It pled good is obvious coming limitations; cause of action within the statute of however, at proved only trial he a cause of action barred by the statute of limitations.
Appellees alleged that on or about March 1968 the appellant willfully, wantonly “... negligently ...” removed the line and thus termi- appellant’s power supply. nated filed Appellant’s on March 1970. evidence at trial showed *10 actually May 1966, that terminated years four Appellant before the action was filed.
Company contends, agree, and I that the action was year thus barred appli- two statute of limitations personal cable property damage. actions W.Va. Code, 55-2-12 alleged While the [1963]. a writ- giving duty, ten contract brought rise to a the action Many was tortious in nature. tort actions have their origins in contracts. As this Court noted in Homes v. Monongahela Co., 136 W. Va.
(1952): complained
Where the transaction of had its ori- gin places in a parties contract which in such in attempting perform relation promised committed, service the tort was gravamen breach of contract is not action. The contract in such case is mere induce- ment, creating things the state of which fur- tort, nishes occasion of the and in all such remedy cases the is an action ex delicto and not contractu, an action ex 136 Va. at 69 citing W. S.E.2d at 12 Am (1938). Jur., Contracts, § 459 alleged complaint, While contract was in the there express charge was no of breach contract. Rather appellees exclusively used words that denote tort such “willfully, wantonly negligently.” Accord, Family Savings Loan, Ciccarello, _ W. Va. _, Inc. v. S.E.2d 157
Furthermore, damages the measure of is differrent although tort than it is contract this case does not subject. warrant a dissertation on that sloppy. damages proof was at best The reason required damages proof are is standards that strict impossible to offer usually for the defendant is say damages concerning To any proof whatsoever. say countervailing proof is to the defendant offered no proved his question is whether nothing; the real evidence, and in this damages applicable rules of under he did not. case Drake
James N. Sheriff, etc.
C. Airhart, E. (No. 13842) July 14, Decided 1978.