Delp v. Itmann Coal Co., No. 16541

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM; McGRAW
• Citation: 176 W.Va. 252,342 S.E.2d 219
• Parties: James A. DELP v. ITMANN COAL COMPANY.
• Docket Number: No. 16541
• Decision Date: 02 April 1986

Page 219

342 S.E.2d 219 176 W.Va. 252 James A. DELP
v.
ITMANN COAL COMPANY. No. 16541. Supreme Court of Appeals of
West Virginia. April 2, 1986.

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[176 W.Va. 253] Syllabus by the Court

1. " 'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.' Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932)." Syllabus Point 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957).

2. "Where a party is not entitled to recover in any view of the evidence, a verdict should be directed for the adverse party." Syllabus Point 1, Cox v. Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975).

3. " 'Under Mandolidis v. Elkins Industries, Inc., [161 W.Va. 695,] 246 S.E.2d 907 [96 A.L.R.3d 1035] (1978), it is essential, in order for an injured employee to recover, that the employer's misconduct must be of an intentional or wilful, wanton and reckless character, that the employer must have knowledge and appreciation of the high degree of risk of physical harm to another created by such misconduct, and, of course, that the employer's action must be the proximate cause of the injury.' Syllabus, Cline v. Joy Mfg. Co., 172 W.Va. 769, 310 S.E.2d 835 (1983)." Syllabus, Kane v. Corning Glass Works, 175 W.Va. 77, 331 S.E.2d 807 (1984).

Burton & Goad, David Burton and Stephen B. Goad, Princeton, for appellant.

Jackson, Kelly, Holt & O'Farrell, W. Warren Upton and Gary W. Hart, Charleston, for appellee.

PER CURIAM:

This is an appeal from a final order of the Circuit Court of Wyoming County, entered March 26, 1984, which denied the motion of the appellant, James A. Delp, for a new trial. The cause of action arose under the deliberate intent provisions of the Workmen's Compensation Act, W.Va.Code § 23-4-2 [1969], ¹ which we discussed at some length in Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). The appellant contends that the trial court erred in directing a verdict in favor of the appellee, Itmann Coal Company. A majority of this Court finds no error [176 W.Va. 254] in the judgment of the circuit court, and we affirm.

The appellant was an underground coal miner employed by the appellee as a miner's helper at the Itmann No. 2 mine in Wyoming County. The appellant's job called for him to work alongside a Jeffrey 120-L continuous mining machine, adjusting the power cable so that the machine would not run over it. On May 8, 1979, the appellant was performing this duty alongside a continuous miner being operated by a fellow employee named Collins when the ripper head of the machine suddenly swerved to the side, pinning the appellant against a rib of coal. As a result, the appellant suffered a broken leg, injuries to his back and chest and was unable to return to work for almost three years.

The appellant sued the appellee ² in the Circuit Court of Wyoming County, seeking to recover damages for his injuries. The complaint alleged that the appellant's injuries were the direct and proximate result of the appellee's willful, wanton and reckless misconduct in making defective repairs to

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the continuous mining machine. ³ The appellee responded, denying all material allegations contained in the complaint. The appellee also moved for summary judgment, which motion was denied by order entered February 27, 1984.

Trial was conducted before a jury on February 27 and 28, 1984. At the close of all the evidence, the appellee moved for a directed verdict on the issue of liability. The trial court concluded that there was insufficient evidence to warrant submitting the issue to the jury and entered judgment in favor of the appellee. The appellant's motion for a new trial was denied by order entered March 26, 1984, and the appellant appealed.

The appellant's principal contention on appeal is that the trial court erred in entering a directed verdict in favor of the appellee.

"Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932).

Syllabus point 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957). Where the evidence, viewed in this light, is insufficient to support a verdict in favor of the plaintiff, the trial court is required, upon motion, to direct a verdict in favor of the defendant. Mountaineer Contractors, Inc. v. Mountain State Mack, Inc., 165 W.Va. 292, 268 S.E.2d 886 (1980); Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768[176 W.Va. 255] (1979); Cox v. Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975).

Viewing the evidence adduced at trial in the light most favorable to the appellant, the jury could have made the following findings of fact: The appellant was injured when the continuous miner's tram levers, the hydraulic controls which regulate the backward and forward motion of the machine, locked, causing the ripper head to swerve suddenly and strike the appellant. At the time of the accident, one of the tram levers was secured to the body of the continuous miner with a nut and bolt, instead of the cotter pin used by the manufacturer. Although a bolt was sometimes used to replace a broken cotter pin on tram levers, it was not an approved replacement part and its use therefore violated company policy, presumably arising out of safety regulations.

The appellant noticed the bolt on the tram lever four or five days before the accident. He also noticed that the bolt did not fit snugly, causing the continuous miner to vibrate and wobble, although the machine vibrated to some extent in the course

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of normal operation. The appellant reported the substitution to Collins, the operator of the continuous miner, and Kermit Tolliver, the chief electrician, but was told by Collins that the bolt wouldn't cause any problems...