Commonwealth Tire Co. v. Tri-State Tire Co., TRI-STATE

• Decision Date: 19 December 1972
• Docket Number: TRI-STATE,No. 13105,13105
• Citation: 193 S.E.2d 544,156 W.Va. 351
• Court: West Virginia Supreme Court
• Parties: COMMONWEALTH TIRE COMPANY, a corporation, v.TIRE COMPANY, a corporation.

Page 544

193 S.E.2d 544

156 W.Va. 351

COMMONWEALTH TIRE COMPANY, a corporation, v. TRI-STATE TIRE COMPANY, a corporation.

No. 13105.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 10, 1972.

Decided Dec. 19, 1972.

Syllabus by the Court

1. Rule 52(a) mandatorily requires the trial court, in all actions tried upon the facts without a jury, to find the facts specially and state separately its conclusions of law thereon before the entry of judgment. The failure to do so constitutes neglect of duty on the part of the trial court, and if it appears on appeal that the rule has not been complied with, the case may be remanded for compliance.

2. 'A statement of material facts in an affidavit for attachment must be certain and definite, in a legal point of view, so as to inform those entitled to defend the attachment what particular facts they must repel.' Pt. 4, syllabus, Goodman v. Henry, 42 W.Va. 526 (26 S.E. 528).

3. The fact that an attachment is dismissed on the grounds that the affidavit does not contain sufficient material facts does not necessarily mean that there is, in fact, a lack of good cause for the attachment.

4. 'To sustain a claim for punitive damages the wrongful act must have been done maliciously, wantonly, mischievously or with criminal indifference to civil obligations. A wrongful act done under a bona fide claim of right and without malice in any form constitutes no basis for such damages.' Pt. 3, syllabus, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670 (74 S.E. 943).

5. Damages which are remote, conjectural, or speculative, cannot be recovered, and in order to sustain a recovery for damages there must be proof which furnishes reasonable certainty of damage and the amount thereof.

Harry L. Hager, Huntington, for appellant.

Carroll W. Casto, Point Pleasant, Maurice G. Taylor, Jr., Huntington, for appellee.

BERRY, Acting President.

The appellant, plaintiff below, Commonwealth Tire Company, appeals from a final order of the Circuit Court of Lincoln County on March 31, 1971 which overruled the appellant's motion to set aside a judgment which the court had rendered in favor of the appellee, Tri-State Tire Company, the defendant below, and to enter a judgment against the appellee, or in the alternative, to grant appellant a new trial. The appellant had originally brought an action to recover $5,778 that was owed to it by the appellee on open account for new tires that the appellant had sold to the appellee. The appellant had attached certain property of the appellee's on the grounds that the appellee was converting its property into money with the intent of defrauding its creditors. As a result, the appellee filed a counterclaim alleging that the affidavit filed in support of the appellant's attachment was false and further alleged that the appellant had secretly employed an employee of the appellee which resulted in irreparable damage to the appellee. The appellee demanded compensatory and punitive damages in its counterclaim. The case was tried without a jury and the trial court found in favor of the appellant in the amount of $5,778, but further found for the appellee in the amount of $6,000 for compensatory damages and $2,000 for exemplary damages, and thus entered judgment for the appellee in the amount of $2,222.

The appellant contends that the judgment in favor of the appellee was contrary to the evidence, that punitive damages were not justified in this case, that the appellee was not damaged by any conduct on the appellant's behalf, and that if there were any damages, the defendant failed to prove them with any degree of certainty.

The appellant's appeal was granted by this Court on June 28, 1971 and the case was submitted for decision on October 10, 1972 upon the arguments and briefs of the parties.

It appears from the record that the appellee, Tri-State Tire Company, began doing business in December of 1969 in Hamlin, West Virginia, as a wholesaler and retailer of tires and other automotive accessories. Mr. Ralph Johnson, the President of the Company and one-fourth owner, hired Mr. Gordon Moore as the manager of the store and as the route salesman for a compensation of $600 a month, plus expenses on the road. Mr. Moore sold primarily to service stations. Tri-State Tire Company had two main suppliers of tires, Commonwealth Tire Company, the appellant in this case, and Wholesale Tire Company, It appears from the record that Mr. Johnson in December of 1969, while President of Tri-State Tire, was employed by Commonwealth Tire Company and in January, 1970 he left the employment of Commonwealth and was employed by Wholesale Tire Company until about June 1, 1970.

Mr. Moore testified that he was led to believe by Mr. Johnson that he and Mr. Johnson were going to obtain financing in Pittsburgh in order to buy Tri-State Tire Company for themselves. However, those plans did not materialize, and, as a result, in April, 1970 Mr. Moore approached the President of Commonwealth Tire, Mr. Conley, and inquired about possible employment with Commonwealth Tire. Mr. Conley was receptive to this inquiry and Mr. Moore was subsequently hired and placed on the payroll of Commonwealth Tire beginning May 15, 1970. However, Mr. Moore did not actually go to work for Commonwealth Tire until May 18, 1970. Mr. Moore did not inform the President of Tri-State Tire, Mr. Johnson, that he had accepted a position with Commonwealth and remained on the payroll of Tri-State and received his last check from Tri-State on May 29, 1970. Mr. Moore also had continued to fill out expense accounts for Tri-State Tire and turned in his last expense account for the week ending May 23, 1970. Mr. Moore testified that he had not told anyone connected with Commonwealth Tire that he was still on the payroll of Tri-State during the last two weeks of May and he also testified that he had told Mr. Conley before he went to work for Commonwealth that he had informed Mr. Johnson at Tri-State that he was going to quit. It is clear from the evidence that Mr. Moore did continue to work for Tri-State during the last two weeks of May. He checked in at the store in Hamlin every day, continued to file an expense account continued to use Tri-State's truck, continued to write invoices on behalf of Tri-State, and also continued to supervise Mr. Brock who worked in the Hamlin store.

On June 4, 1970 a representative of Wholesale Tire Company, with the permission of Mr. Johnson, the President of Tri-State Tire Company, removed a large quantity of tires which Wholesale Tire Company had sold to Tri-State on open account. Tri-State owed Wholesale Tire approximately $16,000 and Wholesale Tire evidently became concerned about Tri-State's financial position. On the evening of June 4 Mr. Johnson and the other three stockholders held a meeting at the store in Hamlin and took inventory. It then became apparent that Mr. Johnson had sold a number of tires himself and had not deposited the proceeds with Tri-State. Consequently, Mr. Johnson was removed as president of the company and Mr. Adkins became the new president. Mr. Johnson was made the vice-president and was told to immediately pay about $1,800 to the company which was the amount for which he was liable. It was also discovered during the inventory count that Mr. Moore had a station wagon full of tires parked nearby which were his samples as a salesman for Commonwealth Tire Company. As a result, Mr. Moore's employment with Tri-State was terminated shortly before midnight on June 4, 1970. The next day, Mr. Moore contacted Mr. Conley and advised him of what had taken place the day before at Tri-State and Mr. Conley told Mr. Moore to go to the office of Mr. Houston Smith, who was an attorney in Hamlin, and confer with Mr. Smith as to what course of action should be taken. Mr. Smith testified that Mr. Moore told him that Wholesale Tire Company, with Mr. Johnson's permission, had removed a large quantity of tires which it had sold to Tri-State; that the treasurer and one-fourth owner of Tri-State Tire Company, Mr. Coronet, had removed certain merchandise which Mr. Moore believed had been placed there on open account; that the former vice-president and one-fourth owner of Tri-State, Mr. Adkins, had taken a truck belonging to Tri-State into the State of Ohio; and that the former president and one-fourth owner of Tri-State Tire, Mr. Johnson, had been improperly taking large sums of money from Tri-State. Consequently, Mr. Houston Smith recommended to Mr. Conley that an attachment of the assets of Tri-State Tire would be in order under these circumstances and an attachment was subsequently issued on June 5, 1970 on the basis of Mr. Moore's affidavit.

Mr. Johnson confirmed the fact that Wholesale Tire Company had been given permission to remove the tires from the Hamlin store which Wholesale had sold to Tri-State and that he had sold tires which belonged to Tri-State and kept the proceeds for himself. Mr. Coronet testified that the merchandise he removed from the store had been placed there by him on a consignment basis and that he removed the products because they were simply not selling.

Mr. Moore testified later that he did not know for a fact that the assertion in his affidavit that the appellee, Tri-State Tire, was converting its assets into cash for the purpose of defrauding creditors was true, and that he merely signed what was drawn up for him by the attorney, Mr. Smith.

On June 24, 1970 the appellee, Tri-State Tire, filed a motion seeking dismissal of the attachment which was accompanied by an affidavit of Mr. Adkins, the President of Tri-State Tire. The motion was heard June 26, 1970 but Commonwealth Tire did not file any counter-affidavit and did not cross-examine Mr. Adkins, and, consequently, the trial court dismissed the attachment on July 6, 1970.

Evidence was...