Konchesky v. S. J. Groves & Sons Co., 12254

• Decision Date: 24 March 1964
• Docket Number: No. 12254,12254
• Citation: 148 W.Va. 411,135 S.E.2d 299
• Court: West Virginia Supreme Court
• Parties: Joe KONCHESKY et al. v. S. J. GROVES AND SONS CO., Inc., a Corporation.

Page 299

135 S.E.2d 299

148 W.Va. 411

Joe KONCHESKY et al. v. S. J. GROVES AND SONS CO., Inc., a Corporation.

No. 12254.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1964.

Decided March 24, 1964.

Syllabus by the Court

1. Rule 46 of the West Virginia Rules of Civil Procedure provides that in lieu of a formal exception it is sufficient if a party against whom a ruling or order is made opposes the action taken by the court at the time it is made and indicates the action which he desires, or, if such party did not have an opportunity to object at the time any ruling or order was made by the trial court on a motion of the opposing party, no objection or exception is required and an appellate court may consider the alleged error even though no formal objection or exception was made or taken.

2. Liability in blasting cases, if properly proved, is held to be absolute, but no recovery can be had in any case without proper proof of damages.

3. The general rule in determining the amount of damages for injury to real property in a case of this kind is to allow the difference between the market value of the plaintiff's premises before the injury happened and the market value immediately after the injury, taking into account only the damage which had resulted from the defendant's acts. The reasonable cost of repairs, if properly proved, can be considered as evidence in determining the market value of property after it has been damaged.

4. Damages cannot be awarded for injury done to property where the evidence is speculative, conjectural or uncertain as to the amount of damages.

5. "Where property is completely destroyed, the amount of recovery is measured by the market value at the time of the destruction. Stenger v. [Hope Natural] Gas Co., 141 W.Va. 347 ." Point 9, syllabus, Mullins v. Baker, 144 W.Va. 92 .

John C. Southern, Clarksburg, for appellants.

Ezra E. Hamstead, Richard E. Hamstead, Morgantown, for appellee.

BERRY, Judge.

This action was instituted in the Circuit Court of Monongalia County by the plaintiffs, Joe Konchesky and Anna Konchesky, against S. J. Groves and Sons, Inc., a Corporation, and two other defenants, to recover damages to property owned by the plaintiffs, alleged to have been caused as the result of blasting operations at the Morgantown Airport in Monongalia County, West Virginia, in an area known as 'the Mileground', located near the City of Morgantown. The buildings owned by the plaintiffs were located quite some distance from the airport and the damage in question was allegedly caused by vibration as a result of the blasting. Two of the defendants were dismissed from this action by stipulation of the parties under Rule 41(a), (1), (ii), Rules of Civil Procedure.

The case proceeded to trial against the defendant Groves and at the completion of the plaintiffs' evidence upon motion of the defendant for a directed verdict, which was resisted by the plaintiffs, the trial court sustained said motion and the jury returned a verdict in favor of the defendant and judgment was entered thereon September 29, 1962. The order recording the directed verdict and the judgment did not contain specific objection by the plaintiff to such action by the court, although the record indicates that said order was entered on the same day after the attorney for the plaintiffs resisted the motion. This argument, which is contained in the record, clearly indicates objection on behalf of the plaintiffs as to the granting thereof.

Upon application to this Court by the plaintiffs, an appeal and supersedeas was granted on June 24, 1963, to the judgment of the Circuit Court of Monongalia County of September 29, 1962.

The plaintiffs owned four houses designated in the record as 'pink househ, 'brick househ, 'gray house', and 'green house', as well as a store building known as 'Joe's Place', all of which were located in the area known as 'the Mileground', and across the road from where the airport was being constructed, the location of the buildings varying in distance of about 400 feet to about 1750 feet from said construction. There were other buildings in this area located at similar distances from the airport. Witnesses who testified on behalf of the plaintiffs, and who lived in some of the houses alleged to have been damaged by the blasting, testified that there were some cracks in the buildings and walks before the blasting.

Only one of the plaintiffs, Anna Konchesky, testified during the trial of this case. This plaintiff testified that there was nothing wrong with any of the buildings before the blasting, but that within a short time thereafter cracks and defects appeared in the buildings. However, other witnesses had said there was previous damage, and contractors who testified on behalf of the plaintiffs with regard to the cost of repairing the damages to the buildings were unable to separate the old damage from any new damage, testifying generally as to the cost of repairing all the damage of any nature to the four houses. The estimated damage done to the business building known as 'Joe's Place' was the cost of reconstructing a completely new building, without any attempt being made whatsoever at estimating the value of the building either before or after the alleged damage caused by the blasting. No attempt was made to introduce testimony as to the market value of any of the buildings involved before and after the damage in question. The entire proof of damages done to the four houses was based on the oral testimony of the contractors as to the total amount of cost to repair the damaged areas of the buildings. No attempt was made during the trial to submit itemized estimates of the cost of repairs of such damages.

The trial court directed the verdict to be returned in favor of the defendant because damages had not been properly proved by the plaintiffs during the trial so as to warrant recovery.

The errors assigned in this Court by the appellants, the plaintiffs below, can be consolidated into one assignment, that is, that the trial court erred in directing a verdict in favor of the defendant on the grounds that it was contrary to the law and evidence. The appellee, defendant below, cross assigned error in this Court asserting that the appeal was improvidently granted because of the failure of the plaintiffs below to request that a specific objection be inserted in the final order of September 29, 1962, wherein judgment was entered against them.

It will be necessary to consider the cross assignment of error by the appellee first, because if it prevails it would then be necessary to dismiss the appeal as improvidently awarded, and the assignment of error by the appellants would not be reached.

It is true that it has always been necessary for a party to object or except in some manner to the ruling of a trial court, in order to give said court an opportunity to rule on such objection before this Court will consider such matter on appeal. Town of Oceana v. Cook, 63 W.Va. 296, 60 S.E. 145; Hinton Milling Company v. New River Milling Company, 78 W.Va. 314, 88 S.E.2d 1079; State v. John, 103 W.Va. 148, 136 S.E. 842; Oil Service Company v. Detroit Fidelity & Surety Company, 105 W.Va. 130, 141 S.E. 626; Bell v. Huntington Development & Gas Company, 106 W.Va. 155, 145 S.E. 165; Harmon v. Spurlock, 121 W.Va. 633, 5 S.E.2d 797; State v. Cruikshank, 138 W.Va. 332, 76 S.E.2d 744.

This matter is now governed by Rule 46 of the West Virginia Rules of Civil Procedure, which reads as follows:

'Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.'

It will be noted that this Rule clearly shows that formal exceptions are unnecessary, but parties must still make it clear that they object to the ruling or order of the court in order to preserve such matter for appeal. Exceptions to the action of the trial court may now be made by the parties under this Rule by making it known to the court the action which is desired of the court or by an objection being made to the action taken by the court and the grounds therefor; and, if a party has no opportunity to object to the ruling or order at the time it is made,...