Earl T. Browder, Inc. v. County Court of Webster County

Decision Date15 November 1960
Docket NumberNo. 12016,12016
Citation116 S.E.2d 867,145 W.Va. 696
CourtWest Virginia Supreme Court

Syllabus of the Court

1. The remittitur in its broadest sense is the procedural process by which the verdict of a jury is diminished by subtraction. The typical situation in which it is employed is where, on a motion by the defendant for a new trial, the verdict is considered excessive and the plaintiff is given an election to remit a portion of the amount of the verdict or submit to a new trial.

2. 'When the illegal part of the damages ascertained by the verdict of a jury is clearly distinguishable from the rest, and may be ascertained by the court without assuming the functions of the jury and substituting its judgment for theirs, the court may allow plaintiff to enter a remittitur for such part, and then refuse a new trial.' Point 4 Syllabus, Chapman v. [J. W.] Beltz & Sons Co., 48 W.Va. 1 .

3. A remittitur is not proper unless the excessive part of the verdict is a sum certain determinable from the record.

4. In an action wherein the compensation which the plaintiff is entitled to recover is indeterminate in character, the verdict of the jury may not be set aside as excessive unless it is not supported by evidence or is so large that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.

5. In a case in which the compensation which the plaintiff is entitled to recover is indeterminate in character, mere difference of opinion between the court and the jury concerning the proper amount thereof will not justify the court in setting aside such verdict.

6. 'Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong.' Point 2 Syllabus French v. Sinkford, 132 W.Va. 66 .

7. The action of the trial court in setting aside a verdict for the plaintiff and awarding the defendant a new trial will be reversed by this Court where it appears that the case, as a whole, was fairly tried and no error prejudicial to the defendant was committed therein.

8. It is not error for the court to refuse to grant an instruction on the unanimity of the jury.

S. L. Flournoy, Roy S. Samms, Jr., Charleston, Brooks Callaghan, Richwood, for plaintiff in error.

Wysong & Wysong, Ernest V. Morton, Jr., Webster Springs, for defendant in error.


This action of assumpsit arose in connection with a written contract by the terms of which Earl T. Browder, Inc., agreed to build a hospital for The County Court of Webster County. The case is before this Court on writ of error to the final judgment of the Circuit Court of Webster County, embodied in an order entered therein on May 27, 1959, by which the trial court set aside a verdict for $27,219.18 in favor of Earl T. Browder, Inc., the plaintiff, against The County Court of Webster County, the defendant.

Previously in the same case, upon writ of error prosecuted by the defendant, this Court set aside a verdict for $30,000 in favor of the plaintiff and granted the defendant a new trial. Earl T. Browder, Inc., v. County Court of Webster County, 143 W.Va. 406, 102 S.E.2d 425. Because of the detailed statement of pertinent facts in the previous opinion, the facts will be stated herein to a limited extent only.

The former opinion discloses that the plaintiff's claim was originally composed of three items: (1) A claim of $22,426.93 for certain excavating done by the plaintiff at the rear of the hospital. This item was disallowed by this Court, because it represented a claim of compensation for work which was not within the purview of the written building contract, plans and specifications, and because such 'extra' work was not formally authorized by the county court. This portion of the original claim accordingly has been abandoned by the plaintiff and was not asserted at the second trial. (2) An item of $1,566.91, plus interest, representing a charge for hauling and storing certain hospital furniture and equipment. It is now conceded by the defendant that the county court formally authorized payment of this item and that it is proper. (3) The sum of $36,871.04, representing the cost of removing 2,458 5/72 cubic yards of rock, referred to in the former opinion and in the record of the second trial as 'unclassified excavation', at $15 per cubic yard. Inasmuch as the first of the three items as listed above has been held previously by this Court to be improper, and was not asserted at the second trial, and inasmuch as the second item of $1,566.91 is now recognized by the defendant to be correct and proper, there remains for our consideration at this time only the third item, representing a claim for the removal of 2,458 5/72 cubic yards of rock or 'unclassified excavation', at $15 per cubic yard, amounting to the sum of $36,871.04.

The plaintiff at the trial claimed interest on both the item of $1,566.91 and the item of $36,871.04 from November 12, 1952, that being the date of a letter from the plaintiff making formal demand upon the defendant for payment. Apparently no question was raised at the trial relative to the propriety of interest. Plaintiff's Instruction No. 4, which was read to the jury, authorized the jury to include such interest in its verdict and no objection was urged to that feature of the instruction. See Code, 56-6-27; Morton v. Godfrey L. Cabot, Inc., 134 W.Va. 55, 63 S.E.2d 861; Bischoff v. Francesca, 133 W.Va. 474, 56 S.E.2d 865. In response to two special interrogatories, the jury found that rock was actually excavated by the plaintiff, and that the amount thereof was 1,229 cubic yards or a total yardage almost exactly one-half of that claimed by the plaintiff.

The base contract price for the construction of the hospital was $365,617. The specifications provided that the defendant was authorized to 'make changes in the drawings and specifications of this contract' with proper adjustments of the contract price, resulting from such changes. 'Change orders' of this nature were made so as to add $39,295.90 to the contract price. These 'change order' items and the base contract price have been fully paid.

On November 12, 1952, the defendant mailed to the plaintiff a check for $56,348.91, bearing the notation 'Balance due Contract.' While such check was being transmitted by mail and before the plaintiff received it, the plaintiff directed a letter to the defendant stating that 'it is expressly understood that such check can not be treated by us as a final and complete payment in the premises, but we reserve the full right of enforcement and collection of our additional claim'. The prior opinion discloses that this Court held that the fact that the plaintiff accepted and deposited this check with such notation appearing thereon did not preclude the plaintiff from asserting the balance of its claim. At the second trial there was no controversy concerning the propriety of this check and no question concerning the charge thereby paid. It could have served only to confuse or prejudice the jurors and, therefore, the trial court properly refused to admit it as evidence proper for the jury's consideration.

The specifications which formed the basis of the bidding contained the following language: 'The general contractor shall write on the bottom of the bid form the cost of unclassified excavation.' The plaintiff's bid on the prescribed form contained the following language: 'Unclassified excavation $15.00 C.Y.' It is clear that the abbreviation 'C.Y.' means cubic yard. The difference between 'classified excavation' and 'unclassified excavation' appears clearly from the testimony. Earl T. Browder stated the distinction succinctly as follows: 'Classified is what is called for on the plans and unclassified is anything else that might be excavated.' See 12 Am.Jur., Contracts, Section 324, page 878.

Preparatory to the making of the plans and specifications, and in order to facilitate bidding in the customary manner, 'test holes' were drilled in the area to be excavated in connection with the construction of the hospital. In relation thereto Earl T. Browder testified as follows: 'It is protection for both the owner and the contractor. No one can tell us what is under that ground by examining it from the surface or walking cross it. The test holes set forth what they think is down there. We are able to base our bid on what is shown by the test holes and knowing if we have to go deeper and hit something else our unclassified bid is what we get. Without that clause, contractor gambles. It is one of the fairest things we have.' These test holes, according to the plans, disclosed topsoil, loose stone and hard clay beneath the surface in the area to be excavated. Earl T. Browder testified that when he encountered 'rock' in connection with the excavating, he called the fact to the attention of members of the county court and its architect. W. L. Workman, the building superintendent, employed by the plaintiff, defined 'loose stone' as something which 'could be handled with a shovel or by hand', and he defined 'rock' as something 'that has to be handled with heavy equipment in order to move it or break it up.'

The testimony discloses indisputably that the plaintiff encountered 'rock' in connection with the excavation involved in the construction of the hospital, though the amount thereof is a matter of controversy. W. L. Workman, the construction superintendent, testified that he kept day to day field notes which disclose the amount and dimensions of the rocks removed to the extent stated in the plaintiff's claim. Various witnesses for the defendant testified to rocks of considerable size and number. Kenney Hosey, a...

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