135 W. Va. 656 | W. Va. | 1951
Lead Opinion
This is an action in assumpsit on the common counts, instituted by Sammons Bros. Construction Company, hereinafter referred to as “Sammons Bros.”, against Elk Creek Coal Company, hereinafter referred to as “Elk Creek”, to recover the contract price and interest thereon for stripping and loading 18,024 tons of coal, for which it is charged the defendant had failed and refused to pay. The jury found for plaintiff in the amount of $61,-833.16, which, according to the “amended statement of account”, covered the principal sum sought to be recovered, less interest. To a judgment entered on the jury verdict, defendant prosecutes error.
The stripping activities involved the period from September 9, 1947, to September 17, 1948. During such time Sammons Bros. Construction Company, a corporation, was paid for 47,181 tons of coal stripped and delivered. The 18,024 tons declared on were withheld, according to plaintiff, without the latter’s knowledge through alleged improper practices on the part of Elk Creek in the weighing of the coal stripped. The amended statement divided the account into five periods: (1) from September 9, 1947, to January 26, 1948, and involving 4,350.8 tons- at an agreed price of $3.20 a ton, a total of $13,922.56, “said Calhoun having assigned to plaintiff all his interest in such account” (under a joint adventure contract between Sammons Bros, and L. E. Calhoun, dated October 8, 1947,
In addition to its plea of non assumpsit, the defendant submitted a statement showing, among other things, how payments had been made on- the 47,181 tons, and showing credits.
Lucian Calhoun, under an oral contract with Elk Creek, whereby the latter agreed to pay $3.20 a ton for merchantable coal on cars or in bins, had some time, prior to September 9, 1947, begun the stripping and loading of certain designated coal. Due to lack of equipment and at the suggestion of John E. Davis, General Manager of Elk Creek, that some one with additional equipment should be taken in on the operation, Calhoun approached one of the Sammons brothers, and on October 8, 1947, a written joint adventure agreement was entered into, Avhereby Sammons Bros, and Calhoun, as an individual, were to carry on under the name of Calhoun-Sammons Coal Company. This agreement, which was signed on behalf of the corporation by L. R. Sammons, and by L. E. Calhoun, was witnessed by John E. Davis. It stated, among other things: “Elk Creek agrees to pay Calhoun $3.20 per ton for merchantable coal on cars or in bins.” The listed equipment was to remain the property of each separate party pending other arrangements. Calhoun agreed, among other things, to pay for all labor and supplies or expenses incurred on and before October 9, 1947,
By a second writing, bearing date January 26, 1948, designated as a “Contract and Bill of Sale”, the joint adventure was dissolved, and Sammons Bros, therein agreed to take certain equipment held by Calhoun at the price of $4,000.00. Calhoun’s interest in the business, including the entire contract rights with the Elk Creek for coal stripping were thereby conveyed to Sammons Bros., including “all work that had been done under the firm name of Calhoun-Sammons Coal Company.” Sammons Bros, continued the strip mining and loading until September 17, 1948, when it quit and removed its equipment from the operation. On December 1, 1948, summons issued at the instance of Sammons Bros., commanding Elk Creek to appear on the last Monday in December, 1948, to answer “a plea In Assumpsit. Damages $100,000 * *
During the period of time involved in this case, Elk Creek was obtaining coal from three sources, namely, its deep mine, the “S. P. B.” stripping area, and the Calhoun-Sammons stripping area. The cars of coal from the Calhoun-Sammons operation and those from the deep mine were assembled at a point outside the mouth of the mine. They were taken from that place in trips to the scales at the head house, where the loaded cars were weighed and then dumped, the coal then by means of a shoot being loaded into a bin below the head house, and from that point lowered by a monitor to the tipple where it was screened and loaded into railroad cars. Inasmuch as it was not practical to run the S. P. B. coal over the scales it was delivered direct to the bin below the head house by trucks, the capacity of which had been predetermined. All this coal was intermingled. It was screened at the tipple, the dirt and slate removed, and afterwards loaded into railroad cars. At the middle of the month, Elk Creek would get the railroad weights on the coal loaded and shipped during the previous month. To this sum the tonnage of house coal sold to employees for the same period was added, and from this total the
The oral contract, upon which the stripping was done, as heretofore mentioned, was between Elk Creek and Calhoun. The latter had been advised by Elk Creek that, due to car shortage, the maximum tonnage accepted would be limited to one hundred fifty tons a day. Calhoun testified that following'his first trip of coal, which was dumped, as not merchantable, he knew-that a tare was being taken at the scales at the head house, and that it was to be based on the railroad weights. He testified further that he had on one occasion mentioned rather casually the tare to one of the Sammons.
Early in August, 1948, plaintiff contracted with James R. Dick and Cecil Courts, truck drivers, for haulage. These drivers were to be paid by the Sammons Bros, on the same tonnage basis as plaintiff was paid. Dick and Courts evidently kept a complete record, and according to their testimony, they were losing approximately three tons from each nine tons hauled by them. Due to this situation, Courts contacted an inspector of weights and measures of the State Department of Labor. On the afternoon of September 14, 1948, the day preceding plaintiff’s withdrawal from the operation, Willie Gibbs, representing. the Department of Labor, appeared and made a test of the scales at the head house.
Gibbs testified that the tare beam was used to deduct the weight of the light car,, that is the empty mine car.
Gibbs testified that the “thumb screw” on the tare beam was at the time immobile and that at his request the weighman on duty secured a tool from the electrical or blacksmith shop to release the same; that the weigh-man, when questioned as to when the tare was last set, pointed to the wall where the figure “46” was marked, meaning 1946, and said “that is when the tare weight was set”. Further the weighman told witness that the tare weight was set by the mine superintendent, Kenneth Stafford.
Rice testified that he was dispatched to secure the tool to release the screw, and further that it was necessary to keep the screw tight. When asked if he knew who had marked the number “46” on the wall, Rice replied, “Mr. Stafford’s initials to it.” In answer to the question whether there was any connection between the date and the setting of the tare on the cars, he replied, “No, sir, I don’t think so.” He also testified that the tare was changed from timé to time, and that Stafford was the one who changed it. Defendant’s counsel then put the question to Rice: “Mr. Gibbs, the State weight inspector, made some statement, as I recall it, to the effect that you pointed up to this number or date on this post and said that the tare had been set on the scales in 1946 as it was when he was there and had never been changed, had been there all the time?”, to which an objection was interposed but later withdrawn, whereupon the witness was asked, “Did you make any such statement to Mr. Gibbs?”, the witness answering, “No, sir, he didn’t ask me about no weights or anything.”
Runyon, the other weighman, was asked on behalf of defendant, “Something has been said about a date 46. It’s been mentioned by two or three of the witnesses for the plaintiff that there was a post there with some number or date 46 on it. Do you know what that is, did you see it?”, to which he replied, “Yes, sir, that is the weight of a car”, further stating that Stafford had placed the number there. He further testified, “Mr. Stafford taken over the Elk Creek Coal Company as superintendent in the last of ’45 in November, and he was wondering what the weight of the cars was. He asked several of the men and nobody gave him the same answer, so he says, he would just find out for himself, and he weighed two cars himself, put the date he weighed them, the weight of
H. R. Honaker, general superintendent, testified that the tare for the Calhoun-Sammons and the deep mine operations were the same, and if the railroad weight was over the weight recorded at the scales at the head house, the tare was “cut back”. He stated that he never advised Sammons Bros, that Elk Creek was taking the tare. Kenneth Stafford, mine superintendent, testified that the weights at the head house were coordinated with the railroad weights in determining the tare, and that Hon-aker gave him the information upon which to change the tare, and that if the railroad weights “checked”, Hon-aker would advise witness that there was “no need for any change.” Stafford further stated that such tonnage as was lost in one month was recouped the succeeding month on the'basis of the railroad weight. Thus from the last two witnesses it appears that monthly with the railroad weights the tare at the head house was changed.
During the period from August 9 to September 17, 1948, Dick and Courts, truck drivers, testified that 1,303 truck loads of strip coal were loaded on mine cars preparatory to being weighed on the scales at the head house. Their testimony is to the effect that each load averaged 8% to 9 tons. On the basis of 8% tons a truck load, they delivered approximately 11,401 tons into mine cars. The weights, according to the record made on the scales and forwarded to the superintendent’s office, totalled approximately 8,612 tons. According to this testimony the plaintiff lost 2,789 'tons by virtue of the condition of the scales. Thus from the foregoing the discrepancy for the period stated averaged about 24 per cent, as against the 40 per cent upon which Sammons based his testimony.
Thereafter the court overruled defendant’s motion to set aside the verdict, and entered judgment thereon.
No instructions were offered by the plaintiff. The court refused defendant’s instruction No. 1, a peremptory instruction in favor of the defendant; and defendant’s instruction No. 2 to the effect that plaintiff cannot recover for coal alleged to have been mined and delivered, as set forth in item 1 of the amended statement of account. He gave all of the other instructions offered by defendant, namely, Nos. 6, 7, 8, and 9, to the effect that if defendants had failed to pay plaintiff for all coal, plaintiff must establish the same by a preponderance of the evidence; that although the jury believe that the scales were out of balance on September 14, 1948, yet there is no rule of law to the effect that the scales had been in such condition for any certain period of time; that it was incumbent bn plaintiff to prove by a preponderance of the evidence that plaintiff or Calhoun-Sammons, or both, mined mer-
The declaration was based solely on the common counts, which, of course, did not set forth the purported contract of assignment from Calhoun-Sammons Coal Company to plaintiff.
Defendant challenged plaintiff’s right to recover the first item of the bill of particulars, that is, the sum of $13,922.56 on two grounds: (1) That the contract of January 26, 1948, was not broad enough to include Calhoun’s right to recover his share of any shortage which might be proved; and (2) that the amendment to the declaration, after the verdict of the jury did not cure the defect in the declaration.
The right to recover the sum of $13,922.56, set forth in item 1 of plaintiff’s bill of particulars, is based on the alleged shortage of 4,350.8 short tons of coal, which shortage is alleged to have occurred while the stripping operation was being conducted by Calhoun-Sammons Coal Company. 1
Plaintiff claims that, under the agreement of January 26, 1948, it obtained from Calhoun, for the consideration of $4,000.00, the right to collect for this alleged shortage. The provision of the agreement relied upon reads: “Included also in this sale is the interest in the business including the entire contract rights with the Elk Creek Coal Company for coal strip mining. Also included in this sale is all work that has been done under the firm name of Calhoun-Sammons Coal Company.” (Italics supplied).
Defendant claims that the chose in action set forth in item 1 of the bill of particulars did not pass to plaintiff
With this position, however, we do not agree. The agreement, in our opinion, exhibits an overall intent of the parties that Calhoun should cease to have any interest in the contract with the defendant, Elk Creek Coal Company, and that Sammons Bros, would succeed to all rights which Calhoun had under that contract. That being so, we are of opinion that plaintiff cannot recover under the declaration before the amendment, as the common counts are applicable only to an implied contract, or to a special contract, which has been fully performed on plaintiff’s part, thus giving rise to an antecedent debt. Before amendment the declaration contained all common counts in conventional form, together with the necessary allegations of defendant’s promise to pay. Danser v. Mallonee, 77 W. Va. 26, 86 S. E. 895. In it plaintiff asserts an implied contract between it and defendant “for the work and labor, care and diligence of the said plaintiff before that time done, performed and bestowed in and about the business of said defendants and for it and at its special instance and request.”
Under the evidence adduced at the trial, during the period in which Calhoun-Sammons Coal Company conducted the operation, in which the purported shortage of 4,350.8 tons occurred, resulting in a loss in the amount of $.13,922.56, there arose an implied contract between Calhoim-Sammons Coal Company and Elk Creek Coal
Before amendment the declaration asserted an implied contract in favor of plaintiff, which was sufficient to cover all items set forth in plaintiff’s bill of particulars, whereas the proof discloses that if such contract arose as could be sustained under the common counts as to item 1 of the bill of particulars, it was, in the absence of an assignment, an implied contract in favor of a party other and different from the instant plaintiff. Evidently for the purpose of obviating this difficulty, during the trial the evidence as to item 1 was objected to for the reasons asserted here, and defendant, by motion and the offering of an instruction, tried to have this evidence stricken. But plaintiff, in offering the amendment and the court in permitting the same, caused the declaration
The instant amendment was made under Code, 56-4-24, providing for the right to amend a declaration or bill in general, which section provides that plaintiff may have the right to amend his declaration or bill at any time before the appearance of the defendant “and, notwithstanding such appearance, in any action, suit, motion or other proceeding, the court, if in its opinion substantial justice will be promoted thereby, may, at any time before final judgment or decree, and upon such terms as it may deem just, permit any pleading to be amended, * * It is the uniform holding in this jurisdiction that independent cf statute, courts of law and equity will show great liberality in permitting amendments to pleadings, and such authority may be exercised whenever justice will be promoted. Stealey v. Lyons, 128 W. Va. 686, 37 S. E. 2d 569, 574. Likewise it has been the holding of this Court that, while the matter of amendment always rests in the discretion of the Court, Ratliff v. Sommers, 55 W. Va. 30, 37, 46 S. E. 712, the discretion in trial courts is not, absolute, but like every other judicial discretion is subject to appellate review. Webster v. Hurvitz, 116 W. Va. 328, 180 S. E. 265. So an amendment to a declaration may be made by the insertion in a count of the name of new plaintiffs. Strader v. Goff, 6 W. Va. 257. But particularly in regard to this case an amendment may be made under Code, 56-4-27, to cure a variance between the pleadings and the proof. This section provides: “If at the trial of any action or motion, there appears .to be a variance between the evidence and allegations or recitals, the court, if in its opinion substantial justice will be promoted thereby, may allow the pleadings to be amended to conform to the proof.” So, reading Code, 56-4-27, in pari materia with the general statute dealing with amendments, Code, 56-4-24, we perceive no error in the trial court’s permitting the declaration containing, as it did, the common counts only, to be amended, though the
In this jurisdiction, notwithstanding the various provisions contained in the Code, the right to plead partial payment or other matters in defense by a special plea or a plea of the general issue accompanied by a notice of particulars has not been abrogated. If in the instant case the assignor had been paid, a matter which is not determined or shown by this voluminous record, could it be said that a party litigant, or his counsel,-would be compelled to resort to a mere bill of particulars to determine the incidence of financial or monetary liability. If it is true, as this Court believes, that the right to amend resides in the trial courts of this State, by the same token it is true that the right to permit such amendment does not withhold from counsel the right to know
It is our opinion, and as counsel for plaintiff in their brief admit, an amendment made by a special count, setting forth the assignment would be proper, because whatever contract is involved, it is fully executed, in which event were it not for the assignment, the plaintiff could have proceeded either on the common counts, a special count, or both. . “Where there has been a special contract, the whole of which has been executed on the part of the plaintiff, and the time of payment on the other side is past, a suit may be brought on the special contract, or general assumpsit may be maintained; and in the last case the measure of damages will be the rate of recompense fixed by the special contract.” Burk’s Pleading and Practice, 3d Ed., page 183.
The whole theory upon which the plaintiff seeks to sustain the jury finding, in the amount of $61,833.16, based upon the testimony of Lucian Sammons, who, in undertaking to establish that figure, used the amounts furnished by the testimony of Willie Gibbs, which resulted in a percentage of 48.947 per cent of 5,700. On this basis the witness, calling the amount as 49 per cent, arbitrarily set the figure at 40 per cent for the purpose of computing the shortage. To reiterate Gibbs’ testimony and the calculations made by Sammons, which he used on the basis of Gibbs’ testimony, it is asserted that the following items should be taken into account: 1,290 pounds difference In tare in the actual weight of the car; 500 pounds cumulative discrepancy in the scales in weighing a loaded car weighing 6,000; 300 pounds as the result of the tightening and loosening of the rails; and 700 pounds as the result of weighing the car uncoupled from the train, which makes a total, notwithstanding certain discrepancies in this record, of 2,790 pounds. Thus by taking the total figure given by Gibbs of 2,790 pounds, and applying it to the rather arbitrarily established amount of 5,700 pounds, as being the weight of the loaded
In passing on the question whether the figures furnished by Willie Gibbs, which were adopted by the witness Sammons in determining that there was, in fact, a 40 per cent loss of tonnage, the defendant takes the position initially that plaintiff’s own evidence does not prove the loss of tonnage claimed.
This question involves only four figures arrived at by Gibbs as a result of his investigation at the scales' located at the head house on the afternoon of September 14, 1948: 1,290 pounds, an alleged excessive tare weight; 300 pounds, alleged to have resulted from the binding of one end of the rail on the mine scales against an end of the mine track rail on the scales; 500 pounds, representing what the witness Gibbs says is “cumulative loss” in weighing 6,000 pounds of coal; and 700 pounds, being the alleged difference in weight of a mine car in train and one uncoupled. These figures, totalling 2,790, as heretofore stated, are the only ones upon which Sam-mons arrived at the claimed 48.947 per cent of shortage, which he arbitrarily called 49 per cent, and then, dropping off 9 per cent, took as his multiplier 40 per cent of 5,700 pounds, which the plaintiff claims is the weight of a loaded mine car.
In the appraisement of this case on the immediate question, we take Gibbs’ testimony as true. There is nothing in this record to gainsay Gibbs’ veracity as a witness, in fact, counsel for defendant assume in their brief that Gibbs was a truthful witness; nor is there
While it is quite difficult to ascertain from Gibbs’ testimony how he computed the 500 pounds of alleged “cumulative loss” in weighing 6,000 pounds of coal, he is not contradicted in this regard, and we take as true his testimony on this point. But Gibbs testified only concerning the conditions which existed on September 14, 1948, the day of his investigation.
The foregoing, however, is not of itself determinative of this case on the question whether the jury verdict may stand. In this jurisdiction the burden of proving damages rests upon the claimant, and, when damages can be established with reasonable certainty, the claimant must do so. 5 M. J., Damages, Section 90; Wiggin v. Marsh Lumber Co., 77 W. Va. 7, 87 S. E. 194. So it is the duty of the plaintiff to establish by a preponderance of the evidence all provable elements which enter into the quantum of the damages sought to be recovered. As we have said, Gibbs’ testimony bears only on the conditions which he found at defendant’s head house on September 14, 1948: he knew nothing of, and therefore could not testify concerning, conditions prevailing prior to that time during the tenure of plaintiff’s stripping operation, or during any definite part thereof. This witness’s only testimony on the question of tare weight on the beam is to the effect that when he arrived at the head house on September 14, 1948, the “thumb screw” was immobile, and that one of the two weighmen who were present pointed to a post where the figure “46” was written, evidently meaning 1946, and said, “That is when the tare weight was set” by the mine superintendent, Kenneth Stafford. Gibbs reached the head house at the end of one shift and about the time that the weighman Rice was replaced by Runyon on the succeeding shift.
Rice, evidently referring to the markings on the post, testified, “Mr. Stafford’s initials to it”; that there was no connection between the date and the setting of the
Runyon, the other weighman, testified that the figure on the wall “is the weight of a car”, which was marked there by Stafford; that when Stafford became superintendent he asked several of the men concerning the weight of the cars, and received different answers; and that in order to ascertain for himself he weighed two cars, and he (Stafford) “put the date he weighed them, the weight of the cars [4,950] and his initials on the post.” This witness further testified that he did not hear anyone make any statement to the witness Gibbs as to the markings on the post, to the effect that the tare had not been changed since Stafford made the markings.
The testimony of Honaker, the general superintendent, and Stafford, mine ■ superintendent, on the question whether the tare had been changed from time to time on a monthly basis, so as to coordinate the weight on the scales at the head house with the railroad weights, remains uncontradicted in this record.
Likewise the testimony of the two truck drivers, Dick and Courts, who hauled for Sammons Bros, from August 9, 1948, to September 17, 1948, shows a discrepancy for that period averaging about 24 per cent, as ágainst 40 per cent, upon which Sammons based his testimony, is important, not particularly for the purpose of contradicting the accuracy of Gibbs’ figures, but as tending to show that conditions differed from those under which Gibbs made his investigation. There is nothing in this record'to indicate that the railroad weights were inaccurate, and the evidence to the effect that the tare was from time to time changed, so as to coordinate the two weights, stands out clear and uncontradicted. As we have- said, in order for plaintiff to prevail in this case, it must satisfy the second of the two conditions, entering into the quantum of damages, heretofore mentioned, namely, that the shortage of at least 40 per cent, upon
In our opinion, on the question whether the loss testified to by Gibbs occurred at any other defnite time or other times during the tenure of plaintiffs strip mining operation, the evidence p: eponderates in favor of the defendant. So we say that the verdict of the jury on th's controlling factual question, being clean y wrong and against the preponderance of the evidence, should be set aside. “A judgment entered by a trial court on a verdict based on conflicting oral evidence, after a motion to set aside the verdict and award a new trial has been made and overruled, may, on writ of error, be reversed and a rew trial awarded, when, in the judgment of the appellate court, the verdict was plainly against the clear preponderance of the evidence.” Burgess v. Gilchrist, 123 W. Va. 727, pt. 3 syl, 17 S. E. 2d 804.
As this case must be remanded for a new trial, we deem it advisable to address' ourselves to the other positions asserted by defendant, namely: (1) The contract of January 26, 1948, called for merchantable coal, and the coal mined by plaintiff was to a large extent not merchantable; (2) the monthly settlements made between plaintiff and defendant, evidenced by statements, checks, and vouchers, without objection on plaintiff’s part, except as to the coal mined in September, 1948, constituted an accord and satisfaction; (31 th' admission, over repeated objections by defendanf, cf evidence relating to the item of $15,000.00 in the bill of particulars s"t forth in the building of a road was not cured by the instruction given by the court for the jurv to disregard the evidence bearing thereon; and .(4) the court’s instruction did not cure whatever prejudice there may have
First, was the coal mined by plaintiff merchantable? It is unnecessary to state in detail the evidence bearing on this question, because it is in clear conflict, and, under the rule in Fielder v. Service Cab Co., supra, and kindred cases, the conflict having been resolved in plaintiff’s favor, the defendant would not be entitled to have the verdict set aside on this' ground.
We are of opinion that the monthly settlements between the parties do not constitute an accord .and satisfaction. “Settled accounts are deemed conclusive between •the parties, unless fraud, mistake, or omission is shown.” LeGrand v. Hamrick, 116 W. Va. 572, pt. 1 syl., 182 S. E. 577. Plaintiff had no actual knowledge that the coal mined by it was being weighed incorrectly, as it now complains, until September 16, 1948, and, being in ignorance, under the holding in the LeGrand case, its failure to complain from time to time as each settlement was made, and its entry into those settlements without protest, would not serve to bar it on the basis of an accord and satisfaction.
As the evidence bearing on the item of $15,000.00 for building of a road is not relevant to the matters in issue between the parties, the question whether any prejudice resulted from the court’s admission of that evidence, though the court instructed the jury to disregard the .evidence, is moot because the question will not arise on the remand.
Whether the court’s instruction cured the prejudice which may have resulted from evidence bearing on defendant’s failure to mark the weights of its empty cars, likewise becomes moot, as it will not arise on the remand.
In passing, however, we suggest that there is no connection between the failure to mark the weights on the
For the foregoing reasons the judgment of the Circuit Court of Cabell County is reversed, the verdict set aside, and a new trial awarded.
Judgment reversed; verdict set aside; new trial awarded.
Dissenting Opinion
dissenting:
I agree with the majority holding that a plaintiff may recover upon the common counts on a special contract where the contract has been “fully performed on plaintiff’s part, thus giving rise to an antecedent debt”, but I do not agree with the holding that the plaintiff in the instant case could not recover as to part of Item 1 of the bill of particulars without a special count in the declaration. Item 1 of the bill of particulars, filed June 3, 1949, trial having commenced October 17, 1949, reads:
“1. Amount owed for 4,350.8 tons of 2,000 pounds each of coal delivered by plaintiff and L. E. Calhoun, doing business as Calhoun-Sammons Coal Company, to defendant from coal stripping operations on property owned or controlled by defendant in Logan County, West Virginia, from September 9, 1947, to January 26, 1948, at an agreed price of $3.20 per ton, said Calhoun having assigned to plaintiff all his interest in such account_ $13,922.56.”
Assuming, however, that the amendment was necessary to correct the variance between the pleadings and the proof, I think it entirely sufficient. Code, 56-4-27, simply says that “If at the trial of any action or motion, there appears to be a variance between the evidence and allegations or recitals, the court, if in its opinion substantial justice will be promoted thereby, may allow the pleadings to be amended to conform to the proof.” Note that such an amendment is not limited to “any action” other than one based on the common counts. Note also that the amendment may be made as to “recitals” as well as to “allegations”. Since the majority concedes that recovery of Item 1 could have been had under the common counts if there had been no proof required of the assignment, any necessity for the pleadings to show the
Being unable to reach the same conclusion as the majority with reference to the preponderance of the evidence relating to damages, I believe it necessary to point out certain facts contained in the record, in an effort to make my position clear. There is no dispute as to the price per ton to be paid plaintiff for coal delivered by it to the scales of defendant, or that the scales were operated solely by employees of defendant, or as to the number of mine cars of coal actually delivered defendant by plaintiff, or that all mine cars used in the several operations were of the same capacity. As stated by the majority, the “verdict of the jury depends (1) upon the correctness of the figures furnished by Willie Gibbs; and (2) whether the shortage of at least 40 per cent was constant over the entire period of the stripping operation.” Inasmuch as the majority accepts “Gibbs’ testimony as true”, finds “nothing in this record to gainsay Gibbs’ veracity as a witness'”, and concedes that the jury was justified in accepting Gibbs’ test'mony as to the 2,790 pounds error in the weight of each mine car of 5,700 pounds of coal constituting the 49 per cent error, those questions need not be considered here. It will be noticed, of course, that the verdict was based upon an error of 40 per cent of the amount of coal for which plaintiff was paid, not 49 per cent.
As to the error of 1,290 pounds per mine car of coal' due to the weight on the tare being set at 4,990 pounds instead of 3,660 pounds, Gibbs testified: “I inquired of the weighman as to when the tare weight of the cars was set, the way I recall it, and he pointed on the wall to the figure of 46, meaning 1946. He said, ‘That is when the tare weight was set.’ I inquired as to who set the tare weight, and he said the mine superintendent.” I assume that the majority also accepts this testimony of Gibbs as true. However, he is -corroborated by other witnesses. Arlie Runyon, defendant’s witness and weigh-man, stated, with reference to the figure “46” written on the wall: “That was the year the weight was put there.” This witness of defendant was asked the following questions and answered: “Mr. Runyon, on those weights on the scales, were they the same throughout the whole period that Sammons Brothers Construction Company was loading coal and dumping it there at the headhouse, did the scale run about the same throughout the whole period? A. You mean the weight? Q. Yes, sir, about the same throughout the whole period? A. Yes, ■sir, it did. Q. No change -before or afterwards, is that what you say? A. No, sir, there wasn’t. Q. Just hasn’t been any change? A. The weight you mean? Q. Just about the same all the way through? A. Yes, sir.” Thus we have the positive statement from defendant’s own weighman that the tare weights remained the same throughout the entire period of plaintiff’s operation. Mr. Rice, another weighman of defendant, who had been employed by the company since 1938, and who was present at least part of the time while Gibbs was testing the scales, was asked, and answered: “Now, I believe you stated that Mr. Stafford changed the tarebeam from time to time, is that right? A. No, not from time to time; he changed it once or twice while I was there.” This is in direct conflict with other evidence of defendant to-the effect that the tare weight was changed each month
Of the 2,790 pounds error found by Gibbs, an error of 700 pounds was the result of the weighing of each car in train instead of uncoupling and weighing each car separately. That this practice existed throughout the operation of plaintiff seems perfectly apparent. Defendant’s position at the trial was that the practice was the usual and accepted practice of weighing mine cars of coal, and that no error could have resulted from such practice. This, I think, amounts to a clear admission, or at least there is a clear inference, of such continued practice on the part of defendant. Of the error found by Gibbs, 300 pounds per mine car was the result of the binding effect of the rails attached to the scales with rails leading onto the scales. This condition, according to Gibbs, was corrected when the ends of the rails were shortened. The jury had the right to conclude, from these physical facts, that the rails would not have been lengthened from such continuous friction and that, therefore, such friction had existed throughout plaintiff’s operation, and the defendant, although having had complete possession and control of the scales, did not attempt to show otherwise. These conclusions, however, do not depend upon inferences, as will be shown later. The three errors mentioned, 1,290 pounds false tare, 700 pounds as to the weighing of each car in train, and 300 pounds as the result of the binding rails, constitute more than a 40 per cent error in the
Almost from the beginning of the operation,' plaintiff complained that it' was not receiving payment for the amount of coal delivered. It was at first believed that the shortage was due to a mistaken practice or method of identifying or separating mine cars hauling plaintiff’s coal from mine cars hauling coal from defendant’s deep mining operations'. E. R. Sammons testified that they started complaining about shortages “right after Sam-mons Brothers Construction Company alone started.” L. R. Sammons was asked as to this and stated that he went to the office of defendnat “every two or three weeks” and talked with Mr. Davis concerning the matter. Other witnesses testified to the same effect. At least two witnesses testified that officers of defendant company stated, in effect, that no tare was being deducted, meaning, of course, no tare over and above the actual weight of the empty mine cars. After plaintiff had contracted the trucking of the coal to the scales, the truckers being paid on a tonnage basis, a number of tests were máde to es
Witnesses of plaintiff testified to the effect that the trucks used by plaintiff before the hauling was contracted were of approximately the same size as the trucks used by Dick and Courts. Witnesses also testified to the effect that the trucks could not have been loaded any fuller, and that the trucks were “loaded to capacity”. A number of witnesses testified to the effect that plaintiff delivered only “clean” coal, and it is certain that defendant’s inspectors were at the mining operation of plaintiff for the purpose of seeing that only clean coal was delivered. There is no denial that defendant furnished plaintiff with statements showing the number of tons of coal for which plaintiff was paid. As pointed out above, there is abundant evidence to establish that the average weight of the coal of each mine car was 5,700 pounds. These facts, in my opinion, clearly warranted the jury in finding, as it necessarily did, that the practice and conditions under which the coal was weighed at the time Gibbs tested the scales existed throughout the period of plaintiff’s operation and that, therefore, the error in the weighing of the coal delivered by plaintiff amounted to at least 40 per cent of the coal for which plaintiff was paid. In Hurxthal v. St. Lawrence Boom & Mfg. Co., 65 W. Va. 346, 64 S. E. 355, the Court laid down the rule that: “A verdict depending wholly on conflicting oral testimony of witnesses in the presence of the jury will not be set aside cn the sole ground that it is against the weight and preponderance of such evidence. The jury’s province to judge the credibility of such witnesses cannot be so invaded.” Point 1, syllabus.
I think the majority considers some of defendant’s evidence as controlling when it is strongly contradicted. De
Defendant contends that the 1,303 truck loads of coal delivered by Dick and Courts, or .11,401 tons, averaging the truck loads at 8-% tons, as against 8,612 tons, the amount of coal actually paid for, shows an error of 2,789 tons, and only a 24 per cent shortage. But 2,789 tons are 24 per cent of 11,401 tons, the amount of coal claimed to have been delivered, not the amount paid for by defendant. Some of the evidence indicated that the trucks hauling coal would average, on the short hauls to the scales of defendant, more than nine tons. Therefore, if the jury used that weight, as it was entitled to do, the' shortage as to the coal paid for would be approximately 40 per cent.
In cases of this type it is not necessary that damages be established in an exact amount. “Our decisions say that in such cases absolute certainty as to the amount of damages is not required but that reasonable certainty only is necessary, and that substantial damages may be recovered, though the loss can be stated only approximately. Hurxthal v. Boom Co., 65 W. Va. 346; Manss-Owens Co. v. H. S. Owens & Son, 129 Va. 183.” Reiser v. Lawrence, 96 W. Va. 82, 89, 123 S. E. 451.
Being of the opinion that the action of the trial court in, allowing the amendment to the declaration was not error, and that this Court has invaded the province of the jury, I respectfully dissent.