Chapman v. Kane Transfer Co., Inc., No. 13861

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation160 W.Va. 530,236 S.E.2d 207
Decision Date12 July 1977
Docket NumberNo. 13861
PartiesJohn Walter CHAPMAN, Jr. v. KANE TRANSFER COMPANY, INC.

Page 207

236 S.E.2d 207
160 W.Va. 530
John Walter CHAPMAN, Jr.
v.
KANE TRANSFER COMPANY, INC.
No. 13861.
Supreme Court of Appeals of West Virginia.
July 12, 1977.

Page 208

Syllabus by the Court

1. The refusal of a trial court, at a pretrial conference, to admit a written agreement as evidence in a civil action may not be considered a substantial error, since at a later jury trial of the action the agreement, in whole or in part, may or may not be pertinent, relevant and competent evidence for jury consideration.

2. While a motion under Rule 12(b)(6) or 12(c), R.C.P., may be treated as a motion for summary judgment along with matters outside the pleadings, the Rules do not provide for treating a motion for summary judgment as a motion to dismiss the action when matters outside the pleadings are to be considered as bases for dispositive judgment by the trial court on the motion.

3. The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Rice, Hannis & Douglas, Richard L. Douglas and Charles F. Printz, Jr., Martinsburg, for appellant.

Bean & Bean, Ralph J. Bean, Oscar M. Bean, Moorefield, for appellee.

[160 W.Va. 531] McGRAW, Justice:

The personal injury action of plaintiff, John Walter Chapman, Jr., against defendant, Kane Transfer Company, Inc., "was dismissed with prejudice against the Plaintiff to reinstatement of same", by order of the Circuit Court of Berkeley County, entered on October 12, 1976. The trial court, on its own invitation and on motion of defendant's attorney, treated a pending motion for summary judgment as a motion to dismiss pursuant to Rule 12(b)(6), W.Va. R.C.P., as procedural basis for its dismissal order. Defendant's motion to have the motion for summary judgment treated as a motion to dismiss asked that such consideration be given but "without the supporting Affidavits and Counter-Affidavits" filed in support of and in opposition to the motion for summary judgment.

Plaintiff's complaint alleges that, on August 27, 1973, while he was assisting with unloading produce from defendant's trailer over a trailer ramp to a loading dock at the Grand Union Food Market, Martinsburg, West Virginia, "the trailer ramp connecting the truck and the loading dock collapsed causing the Plaintiff to suffer a fall and sustain severe injury to his right leg and ankle." He asserts that the "sole and proximate cause" of his injuries resulted from defendant's negligence "due to the defendant's failure, by its agent to properly position the trailer and properly set the ramp." He claims damages, including "expenses for doctor and hospital treatment", loss of

Page 209

wages, and compensation for "great pain of body and mind", and demands a jury trial.

Defendant moved to dismiss, filed its answer, and interposed three affirmative defenses, all largely based on failure of the complaint to state a cause of action against defendant and lack of any duty owing by defendant to plaintiff. Defendant served 22 interrogatories on plaintiff and, when no timely answers were forthcoming, moved to dismiss the action as a sanction under Rule 37. This motion was later withdrawn and plaintiff responded to the interrogatories. Plaintiff's 11 interrogatories [160 W.Va. 532] served on defendant were answered. Defendant's responses to the interrogatories brought into the record a copy of an agreement, dated August 13, 1973, between The Grand Union Company, as shipper, and defendant Kane Transfer Company, as carrier, covering transportation of Grand Union's commodities by defendant from shipper's distribution center to its various markets, including stores in West Virginia.

The first paragraph of the agreement provides:

"FIRST: Carrier agrees, during the term of this Agreement, to furnish the management, supervision and necessary labor and automotive equipment to load, unload and deliver by motor vehicle, commodities which are shipped from Shipper's distribution center at Landover, Maryland to its stores located in Maryland, District of Columbia, Virginia and West Virginia."

At a pretrial conference on May 24, 1976, the trial court allowed the agreement to be marked as Plaintiff's Exhibit No. 1 and to be vouched into the record for possible appeal consideration, but denied plaintiff's motion to allow the agreement in evidence for jury consideration.

At the pretrial conference the court permitted plaintiff to amend his complaint and also permitted defendant to amend its answer by inserting a fourth defense on plaintiff's assumption of the risk incident to the unloading work whereby he was injured. The court denied defendant's motion to dismiss the action, since it appeared to the trial court "that Plaintiff's amendment to the Complaint hereinbefore set out meets the substance of Defendant's objection to Plaintiff's Complaint raised in Defendant's Motion to Dismiss." At the conference other exhibits were identified and marked, plaintiff's special damages were stipulated, agreement was reached on the contents of the court's preliminary statement to the jury, and the jury trial was set for July 22, 1976, subject to the court's action on a motion for summary judgment contemplated to be filed by defendant. The motion for [160 W.Va. 533] summary judgment was filed on June 16, 1976, supported by affidavits and restating defenses earlier interposed by defendant. Counter affidavits were later filed by plaintiff.

The trial court prepared a Memorandum of Opinion which reviewed in part the agreement of August 13, 1973, admitted in the record but not for purposes of evidence to be considered by the jury, and some of the materials brought into the record through interrogatories, and, in the written opinion, concluded:

". . . It seems clear that although the contract would indicate a duty on the carrier to unload never the less the parties have modified the contract and further ratified the modification by their acts since the carrier does not in practice unload any of the trailers and the store does in practice unload all the trailers at the Martinsburg Store therefore if in fact there is any claim under the contract because of the carrier's failure to unload and...

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133 practice notes
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...to state a claim is viewed with disfavor, particularly in actions to recover for personal injuries. Chapman v. Kane Transfer Co. , 160 W. Va. 530, 538, 236 S.E.2d 207, 212 (1977). West Virginia Rule of Civil Procedure 12(b) further directs that a court presented with such a motion may consi......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...Lodge Distrib. Co. v. Texaco, Inc ., 161 W. Va. 603, 604-05, 245 S.E.2d 157, 158-59 (1978) ).9 Syl. Pt. 3, Chapman v. Kane Transfer Co ., 160 W. Va. 530, 236 S.E.2d 207 (1977) (citing Conley v. Gibson , 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).10 Syl. Pt. 1, Hutchison v. City ......
  • Gardner v. CSX Transp., Inc., No. 24002.
    • United States
    • Supreme Court of West Virginia
    • November 25, 1997
    ...its ruling, though referring to CSX's motion for summary judgment as a motion to dismiss. See Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977) (motion to dismiss treated as motion for summary judgment when court considers matters outside pleadings). The court's order......
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...to a summary judgment. See, e.g., United States Fidelity & Guar. Co. v. Hathaway, 183 W.Va. 165, 394 S.E.2d 764 (1990); Chapman v. Kane, 160 W.Va. 530, 236 S.E.2d 207 31 It appears that the Board had adopted the following guideline with regard to option contracts: "The Treasurer of the Stat......
  • Request a trial to view additional results
133 cases
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...to state a claim is viewed with disfavor, particularly in actions to recover for personal injuries. Chapman v. Kane Transfer Co. , 160 W. Va. 530, 538, 236 S.E.2d 207, 212 (1977). West Virginia Rule of Civil Procedure 12(b) further directs that a court presented with such a motion may consi......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...Lodge Distrib. Co. v. Texaco, Inc ., 161 W. Va. 603, 604-05, 245 S.E.2d 157, 158-59 (1978) ).9 Syl. Pt. 3, Chapman v. Kane Transfer Co ., 160 W. Va. 530, 236 S.E.2d 207 (1977) (citing Conley v. Gibson , 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).10 Syl. Pt. 1, Hutchison v. City ......
  • Gardner v. CSX Transp., Inc., No. 24002.
    • United States
    • Supreme Court of West Virginia
    • November 25, 1997
    ...its ruling, though referring to CSX's motion for summary judgment as a motion to dismiss. See Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977) (motion to dismiss treated as motion for summary judgment when court considers matters outside pleadings). The court's order......
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...to a summary judgment. See, e.g., United States Fidelity & Guar. Co. v. Hathaway, 183 W.Va. 165, 394 S.E.2d 764 (1990); Chapman v. Kane, 160 W.Va. 530, 236 S.E.2d 207 31 It appears that the Board had adopted the following guideline with regard to option contracts: "The Treasurer of the Stat......
  • Request a trial to view additional results

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