Ellison v. Wood & Bush Co.

• Decision Date: 04 November 1969
• Docket Number: No. 12808,12808
• Citation: 153 W.Va. 506,170 S.E.2d 321
• Court: West Virginia Supreme Court
• Parties: Hilma ELLISON v. WOOD & BUSH COMPANY, a Corporation.

Page 321

170 S.E.2d 321

153 W.Va. 506

Hilma ELLISON v. WOOD & BUSH COMPANY, a Corporation.

No. 12808.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1969.

Decided Nov. 4, 1969.

Syllabus by the Court

1. 'Corporations which are employed as independent contractors by the state road commission to construct a portion of a public highway may be held liable for damage proximately caused to the property of landowners by their negligence or by their use of explosives for blasting in the performance of the highway construction under the construction contract with the state road commission, and in an action by the landowners for recovery of damages thus proximately caused to their property, the independent contractors are not entitled to governmental immunity from liability.' Point 4 Syllabus, Perdue v. S. J. Groves and Sons Company, 152 W.Va. 222, (161 S.E.2d 250).

2. 'The judge of the court when engaged in the trial of a case before a jury should studiously abstain from indicating by word, gesture or otherwise his personal views upon weight of evidence, or the credibility or incredibility of the witnesses, or the extent of the damages sued for, thereby to invade the province of the jurors, the proper triers of the facts.' Point 1 Syllabus, Dye v. Rathbone, 102 W.Va. 386, (135 S.E. 274).

3. It is not improper for a trial judge to express in the presence and hearing of the jury the mere legal basis of his ruling upon an objection to the admissibility of particular evidence.

4. The general rule is that no party may assign as error the giving of or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly the matter to which he objects and the grounds of his objections and ordinarily this Court, in the exercise of its appellate jurisdiction, will consider only objections which have been made in this manner. When this Court holds that an objection made to an instruction is without merit, this should not be construed as a holding by the Court that the instruction is valid and proper in all other respects.

5. 'If, when instructions are read as a whole, it is apparent that they could not have misled the jury, the verdict will not be disturbed, though one may be susceptible of a doubtful construction while standing alone.' Point 2 Syllabus, Mitchell v. The Virginian Railway Company, 116 W.Va. 739 (183 S.E. 35).

6. 'The jury should not in any manner be apprised of the fact that the defendant is protected by indemnity insurance, and such action on the part of plaintiff or his counsel will ordinarily constitute reversible error, notwithstanding the court may instruct the jury not to consider the same in arriving at a verdict.' Point 1 Syllabus, Wilkins v. Schwartz, 101 W.Va. 337, (132 S.E. 887).

Jenkins, Schaub & Fenstermaker, C. Robert Schaub, Huntington, for appellant.

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for appellee.

CALHOUN, Judge:

This case, on appeal from the Circuit Court of Cabell County, involves a civil action instituted in that court by Hilma Ellison, as plaintiff, against Wood & Bush Company, a corporation, as the defendant, to recover damages in the sum of $15,000 alleged to have been caused by the defendant to the plaintiff's dwellings, garage, cellar and patio situated in Cabell County, by concussions and vibrations resulting from the defendant's use of explosives for blasting while engaged in the performance of a written contract with the State Road Commission of West Virginia for construction of a portion of a certain highway known as Interstate Route 64. From the action of the trial court in entering final judgment on a jury verdict for the plaintiff in the sum of $7,000, the defendant has been granted an appeal to this Court.

The case was submitted to this Court for decision upon the record made in the trial court and upon briefs in writing and upon oral argument of counsel for the respective parties.

Errors alleged in the defendant's motion made pursuant to R.C.P. 50(b) and in the petition for appeal are summarized in the defendant's brief as follows:

1. Defendant's acts were those of the State of West Virginia, and it is therefore entitled to the sovereign immunity of the State of West Virginia.

2. The court's comment on evidence was prejudicial error.

3. Plaintiff's instruction No. 1 and counsel's argument misled the jurors as to the basis for recovery.

4. There was no competent evidence of damage upon which a verdict could be returned without speculation.

5. The injection of insurance into the trial of this cause was prejudicial.

In asserting that the defendant is entitled to governmental immunity, counsel rely upon portions of the testimony of Howard Karnes and George Neal, who were witnesses called by the defendant. Mr. Karnes was in charge of the blasting operations in connection with the highway construction project. In this connection, reliance is placed on the following portion of his testimony on direct examination:

Q. Mr. Karnes, while you were there you were working under the supervision of the State Road Commission?

A. Yes, sir.

Q. So that when shots were put off they were supervised by State Road Commission engineers, is that correct, sir?

A. Yes, sir.

Mr. Neal was field office manager for the defendant and in that capacity he took care of payrolls and other matters pertaining to office work. The portion of his testimony on direct examination which is relied upon by counsel for the defendant in asserting governmental immunity is as follows:

Q. Mr. Neal, at all times was the work of Wood and Bush Company under the supervision of engineers from the State Road Commission of West Virginia?

A. Yes, sir, at all times. We followed the specifications on all the work.

Q. And was there a project engineer on the job all the time?

A. Yes, sir.

Q. Did he have to approve everything that Wood and Bush Company did?

A. That's right.

Q. And the manner that they were performing the work, is that correct?

A. That is true.

In referring to the testimony quoted above, counsel for the defendant make the following assertion in their brief: 'Defendant is not, therefore, an independent contractor but is the employee of the State of West Virginia and, as such, should be entitled to the benefit of the sovereign immunity of this State.' We are of the opinion that this contention is not supported by applicable law or by the facts appearing in the record. In making this contention by way of defense, the defendant states in its answer 'that all acts performed by it were in connection with an agreement in writing with the State Road Commission of West Virginia, * * *.' A pretrial order states that 'certain agreements were reduced to writing' including the following issue of law: 'Is the defendant, Wood & Bush Company, entitled to assert the defense of immunity which the State of West Virginia is entitled under the Constitution, By virtue of defendant's contract with the State Road Commission of West Virginia?' (Italics supplied.)

We are of the opinion that the record disclosed clearly that the defendant was acting as an independent contractor pursuant to a highway construction contract in accordance with the common practice and usual procedure in relation to matters of this character. Code, 1931, 17--4--19, as amended, is in part as follows: 'All work of construction and reconstruction of State roads and bridges, * * * shall be done and furnished pursuant to contract * * *.' The record discloses that the defendant was performing the construction contract by persons employed by it. There is no indication from the record that the State Road Commission had the right to employ or to discharge such personnel or to fix their compensation. It is common knowledge, we believe, that it is customary for the State Road Commission to have inspectors or engineers on road construction projects in order to determine that the construction work is being performed by the construction contractor in accordance with specifications and proper standards. This Court has held that an independent contractor performing a highway construction contract pursuant to a written contract with the State Road Commission is not entitled to governmental immunity in a case such as this. Perdue v. S. J. Groves and Sons Company, 152 W.Va. 222, pt. 4 syl., 161 S.E.2d 250.

The appellant asserts that the trial judge committed reversible error by improperly commenting on the weight of the evidence during the direct examination of Charles W. Stewart, a consulting engineer who testified as a witness in behalf of the plaintiff. The witness was permitted to testify, over defense objection, that certain cracks in a bedroom of the plaintiff's home 'were either worsened or they were caused by the blasting.' The defense objection to this testimony was in part as follows: 'If he can only say worsened, I believe he will have to say expressly to what extent and how much worse they were worsened.' The alleged improper comment by the trial judge upon the weight of the evidence occurred in connection with additional testimony of the witness as follows:

A. * * * In the front of the house the chimney had some evidence originally of settling, but in my opinion it was worsened by this blasting to where it moved a considerable distance from the house.

Mr. Schaub: We will object to that, your honor, unless he can state, again, not the worsening but the actual cause.

The Court: Overruled. I don't understand counsel's reasoning for objecting. Even if there was a defect, if that defect is made worse by the blasting it means that counsel objects to the introduction of any evidence on it. And I am allowing it, even though there was some defect before, if the defect was made worse by the blasting I think it would be proper to admit to it, and that is why I am overruling it.

Mr. Schaub: I understand. Your honor, I think he would have to testify to the degree of...