Cochran v. Appalachian Power Co.

• Decision Date: 11 July 1978
• Docket Number: No. 13788,13788
• Citation: 162 W.Va. 86,246 S.E.2d 624
• Court: West Virginia Supreme Court
• Parties: Newman COCHRAN et al. v. APPALACHIAN POWER CO.

Page 624

246 S.E.2d 624

162 W.Va. 86

Newman COCHRAN et al. v. APPALACHIAN POWER CO.

No. 13788.

Supreme Court of Appeals of West Virginia.

July 11, 1978.

Syllabus by the Court

1. A complaint that could be construed as being either in tort or on contract will be presumed to be on contract whenever the action would be barred by the statute of limitation if construed as being in tort.

2. "(T)he opinion of a witness who is not an expert may be given in evidence if he has some peculiar knowledge or more knowledge concerning the subject of the opinion than jurors are ordinarily expected to have." Moore v. Shannondale, 152 W.Va. 549, 566, 165 S.E.2d 113, 124 (1968).

3. "The determination of whether a witness has sufficient knowledge of the matter in question so as to be qualified to give his opinion is largely within the discretion of the trial court and will not ordinarily be disturbed on appeal unless clearly and prejudicially erroneous." Syl. pt. 4, Cox v. Galigher Motor Co., W.Va., 213 S.E.2d 475 (1975).

W. Graham Smith, Jr., Smith & Rumora, Williamson, Charles A. Tutwiler, Tutwiler, Crockett & LaCaria, Welch, for appellant.

Sterl F. Shinaberry, Hostler & Shinaberry, Charleston, for appellees.

McGRAW, Justice:

Appellee, Cochran, operator of a small coal mine in Chattaroy Hollow, Mingo County, West Virginia, on October 14, 1958, entered into a contract with Appalachian Power Company (Power Company) by which the Power Company agreed to put in poles and electric lines to his mine for the sum of $2,300.00. After making payment, he was given a receipt which provided that this $2,300.00 "is not subject to refund." According to Cochran's undisputed evidence, he began operating the mine after the power was installed and continued to operate it on an irregular basis until 1966. In 1964, 1965 and early 1966 there was some disagreement between Cochran and the Power Company over whether or not he was in arrears in payment for his electricity, Cochran contending that he had overpaid and the Power Company contending he still owed it money. The evidence indicates that on March 3, 1966, without giving any notice, the Power Company pulled the cutouts on the lines going to the mines and cut off the electricity while certain equipment of Cochran's remained in the mines. Since the electricity was cut off, water pumps were unable to operate, and water inside the mine accumulated, covered up and damaged the equipment and material. Cochran, after learning that the electricity had been cut off, went to the Power Company representatives and attempted to get them to restore power, but the Power Company refused to do so without a deposit from Cochran. Two months later in May, 1966, Cochran received a check from the Power Company representing an overpayment by him of his prior electric service.

According to his undisputed evidence, Cochran made several trips to the Power Company to attempt to get it to restore power to the mine between March 3, 1966 and October 14, 1968. In 1968, the Power Company, without giving any notice, removed the electric poles leading to the Cochran mine and refused to replace them.

Appellee Cochran, on March 3, 1970, instituted a civil action against the Power Company in the Circuit Court of McDowell County for damages occasioned by the termination of electrical service to his mine. The complaint, alleged in full that:

(1) On or about October 14, 1958, the plaintiffs entered into a contract with the defendant whereby the defendant agreed to install a power line to and supply power for the mines operated by the plaintiffs and located on Buffalo Creek in Mingo County, West Virginia. For installing the power line, plaintiffs paid to the defendant company the sum of Twenty-three Hundred Dollars ($2300.00), and paid for power supplied to them on a monthly basis.

(2) On or about March 6, 1968, without notifying plaintiffs and in violation of the agreement entered into between the plaintiffs and the defendant, the defendant acting through its agents, servants and employees, wilfully, wantonly and negligently removed the power line which it had installed pursuant to the agreement reached on October 14, 1958, and terminated the supply of power to the mines ran by the plaintiffs. At the time such action was taken, the plaintiffs had numerous items of mining equipment inside the mines and as a consequence of the action taken by the defendant, the plaintiffs could not remove said equipment from the mines and it was severely damaged from being left for a prolonged period in the mines. Further, because the plaintiffs' equipment was in the mines, the plaintiffs were required to continue paying royalty on the lease which they had and further, as a result, the plaintiffs suffered monetary loss in not being able to operate their mines, all to the extent of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00).

WHEREFORE, plaintiffs demand judgment against the defendant for the sum of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), plus interest and their costs of action.

Plaintiffs demand a trial by jury.

At trial the only evidence presented by either party on the issue of damages was by Cochran who, after detailing his background and experience in dealing with mine equipment of the type involved, testified as to the value of each item of mining equipment that was destroyed in the mine by the discontinuation of electricity. He further testified about property taxes and minimum royalties he had to pay during the period of time his equipment remained on the leased property due to the lack of electricity. The total damages contended for at the close of Cochran's evidence was $7,474.00, which consisted of the following: $2,300.00 for the installation of the power that was removed by the Power Company; $1,200.00 for royalties paid on the lease during the years which the mine could not be operated as a result of the electricity being terminated; $124.00 paid in property taxes pursuant to the terms of the lease; $500.00 for a 35-B Jeffrey cutting machine; $600.00 for a conveyor and motor; $500.00 for machine cable and conveyor cable; $1,600.00 for 20 tons of steel; $500.00 for two mining cars; and $150.00 for one pump. The appellant Power Company offered no evidence of any kind regarding damages.

At the close of Cochran's evidence, the Power Company asserted for the first time a plea of the statute of limitations and made a motion for a directed verdict upon that ground and upon the ground that the testimony offered in support of the damages was not legally sufficient to sustain an award. These motions were overruled at that time and then again later when they were renewed at the close of all the evidence.

Appellant Power Company now assigns as error the following:

1. The trial court erred in overruling the motion to dismiss that Power Company made at the close of the plaintiff's evidence and again at the close of all the evidence on the ground that the relief was barred by the two-year tort statute of limitations.

2. The trial court erred in allowing the plaintiff to testify over objection as to the monetary damages to his mining equipment.

3. The trial court erred in refusing to strike the sum of $2,300.00 from the Ad damnum clause in the complaint.

4. The trial court erred in refusing to give Defendant's Instructions Nos. B and I.

5. The trial court erred in giving Plaintiff's Instructions Nos. 2 and 3.

6. The trial court erred in not granting Power Company's motion for remittitur to an amount not to exceed $1,324.00.

In their first assignment of error the Power Company argues that this action, sounding in tort, is barred by the two-year tort statute of limitations, W.Va.Code § 55-5-2, and that the trial court erred in failing to grant a motion to dismiss that the Power Company made at the close of Cochran's case and renewed at the close of all evidence. Power Company raised the affirmative defense of statute of limitations for the first time by this motion to dismiss. It does not appear in any pleading it filed. Power Company contends that this civil action was filed on March 3, 1970, and that power was actually terminated on March 3, 1966. In arguing that the complaint alleges a tort, it emphasizes the wording of part of Cochran's complaint wherein he alleges that on or about March 6, 1968, the Power Company "wilfully, wantonly, and negligently removed the power line . . . and terminated the supply of power to the mines . . . ."

Rule 8(c) of the West Virginia Rules of Civil Procedure provides that:

(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitation . . . and any other matter constituting an avoidance or affirmative defense.

In response to this rule, Power Company argues that Cochran's complaint erroneously alleges that power was terminated on March 6, 1968, and that until Cochran's evidence was brought forth it was unaware that power was in reality terminated on March 3, 1966, exactly four years before the action was filed.

In Carter v. Willis, 145 W.Va. 779, 117 S.E.2d 594 (1960) this Court discussed the applicable theories of recovery when a public utility fails to properly supply the customer. In Carter the plaintiff sought relief for the utility's failure to supply enough water. At 783-84, 117 S.E.2d at 597, this Court held that:

It is true that the duty arises out of a contract between plaintiff and defendant wherein the defendant agreed to supply the plaintiff with an adequate amount of water in return for a monetary consideration. Nevertheless, in such a situation the plaintiff may, at his option, maintain an action, Ex contractu, For breach of contract, or an action Ex delicto, For breach of duty, where the defendant negligently fails to comply with the terms of his contract.

The first paragraph of the complaint alleges that the parties "entered into a contract," and the second alleges wrongful termination "in violation of the...