Moore, Kelly & Reddish, Inc. v. Shannondale, Inc.

• Citation: 152 W.Va. 549,165 S.E.2d 113
• Decision Date: 01 October 1968
• Docket Number: No. 12719,12719
• Court: Supreme Court of West Virginia
• Parties: MOORE, KELLY & REDDISH, INC., a corporation v. SHANNONDALE, INC., a corporation.

Page 113

165 S.E.2d 113

152 W.Va. 549

MOORE, KELLY & REDDISH, INC., a corporation v. SHANNONDALE, INC., a corporation.

No. 12719.

Supreme Court of Appeals of West Virginia.

Oct. 1, 1968.

Decided Dec. 20, 1968.

Syllabus by the Court

1. When a written opinion of the trial court is made a part of the record by a court order, this Court, on appeal of the case, may consider the written opinion in determining the ground or grounds upon which the trial court's judgment was based.

2. The use of explosives in blasting operations, though necessary and lawfully used by a contractor in the performance of a construction contract, being intrinsically dangerous and extraordinarily hazardous, renders the contractor liable for damages proximately resulting to the property of another from such blasting, without negligence on the part of the contractor; and no exception to this general rule results from the fact that the contractor, while using the explosives in blasting operations, is on the land of the complaining property owner and using such explosives in blasting operations pursuant to a written contract with the landowner to perform a construction project on the complaining property owner's land.

3. A view by a jury is for the purpose of informing the jurors upon any pertinent inquiry being made in the trial of the case and things which they observe upon such view, so far as they are pertinent to show anything proper to be proved, are to be considered by them the same as any other evidence introduced in the case.

4. Whether a motion for a mistrial should be sustained or overruled is a matter which rests within the trial court's discretion and the action of the trial court in ruling on such a motion will not be cause for reversal on appeal unless it clearly appears that such discretion has been abused.

5. Whether, on motion of a party to a civil action, the case may be reopened for the introduction of further testimony after both parties have rested their cases is within the discretion of the trial court and the exercise of such discretion will rarely be cause for reversal by an appellate court.

6. In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered and those facts which the jury might properly have found from the evidence must be assumed as true.

7. 'Any writing which stimulates and revives a recollection may be used to refresh memory.' Point 4 Syllabus, State v. Adkins, 106 W.Va. 658 (146 S.E. 732).

8. 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.' Point 5 Syllabus, Overton v. Fields, 145 W.Va. 797 (117 S.E.2d 598).

Rice, Hannis, Rice & Wagner, Lacy I. Rice, Jr., John M. Miller, Martinsburg, for appellant.

Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for appellee.

CALHOUN, Judge:

This case involves an action instituted in the Circuit Court of Jefferson County by Moore, Kelly & Reddish, Inc., a corporation, against Shannondale, Inc., a corporation, to recover the sum of $42,423.34 which was alleged to be the balance due the plaintiff on a written contract by which the plaintiff contracted to construct a dam on real estate owned by the defendant. The defendant landowner filed a counterclaim in the action for the sum of $42,423.34 for damage alleged to have been caused to a swimming pool on the defendant's property by the plaintiff in the use of high explosives in blasting operations conducted by the plaintiff in connection with the construction of the dam.

Subsequently the parties agreed that the complaint alleged the correct amount of money due and unpaid under the terms of the written construction contract. Thereafter the trial proceeded solely on the claim asserted by the defendant landowner in its counterclaim. After a trial during which extensive testimony was taken by the respective parties, the jury returned a verdict in the sum of $33,810.13 in favor of the defendant landowner on the claim asserted by it in its counterclaim. On March 30, 1967, the trial court entered judgment against the plaintiff contractor pursuant to the verdict returned by the jury. From that judgment, the plaintiff has been granted the appeal to this Court.

For the sake of convenience and brevity, Moore, Kelly & Reddish, Inc., may be referred to hereafter in this opinion merely as Moore, as the plaintiff or as the contractor; and Shannondale, Inc., may be referred to merely as Shannondale, as the defendant or as the landowner.

In its petition for appeal to this Court, Moore, has asserted thirty-six assignments of error. The primary assignment of error relates to the action of the trial court in submitting the case to the jury on the issue of absolute liability, rather than on an issue of negligence, for any damage which may have resulted proximately to the landowner's property from the action of the contractor in its use of high explosives in the blasting operations in connection with the performance of the contract. We will consider this question at the outset inasmuch as a decision of that question may be determinative of other assignments of error.

At a pretrial conference held on September 23, 1966, an order was entered setting forth various stipulations, including the following: 'The question was raised about the requirement for proof of negligence and it was agreed that under the recent West Virginia cases that if it is shown that the person in control of explosives detonated them that proof of negligence is unnecessary, but it must be shown that damage proximately resulted therefrom and the amount thereof.' The order discloses additional stipulations of issues as follows:

'A. Whether the damages suffered by Shannondale to the pool and its appurtenances were proximately caused by the blasting of the contractor.

'B. If so, the amount of money by way of damages to which Shannondale is entitled from the contractor.'

On November 28, 1966, counsel for the contractor moved the trial court to permit an amendment of the pre-trial order so as to require the defendant to prove negligence in the blasting operations and to eliminate from the order the words, 'proof of negligence is unnecessary,' on the ground that the language of the order in this respect was contrary to the law of this state 'under the peculiar facts of this case.' This motion was made in open court on November 28, 1966, the day on which the jury was empaneled for trial of the case, and more than two months after the pre-trial order was entered. The motion for leave to amend was overruled, apparently because the trial court was of the opinion that, under the law of this state and under the terms of the construction contract, the case should be tried on the issue of absolute liability. Counsel for the defendant argued before this Court that the motion for leave to amend made at the commencement of the trial, if granted, would have resulted in grave injustice because he had prepared his client's case and summoned witnesses for trial on the basis of an issue of absolute liability, and not on the basis of negligence.

Rule 16(6) of the West Virginia Rules of Civil Procedure provides that a pretrial order 'controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.' See also comments made in relation to R.C.P. 16, in Lugar & Silverstein, W.Va.Rules, particularly at pages 149 to 151 inclusive. For reasons to be stated hereafter in this opinion, we deem it unnecessary to decide whether the trial court abused its discretion or otherwise erred in refusing to grant the motion for leave to amend the pretrial order.

In ruling upon the plaintiff's motion to set aside the verdict and judgment and to grant a new trial, the trial court filed a written opinion which was made a part of the record. In such circumstances, we are permitted to consider the written opinion to determine the reasons for the trial court's rulings and judgment. Lilly v. Taylor, 151 W.Va. 730, 734, 155 S.E.2d 579, 583; Sargent v. Malcomb, 150 W.Va. 393, 394, 146 S.E.2d 561, 563.

In ruling on the contention that the case should have been tried on an issue of negligence, the trial court stated in its opinion that such contention was not in accord with the law of this state and also that such contention was at variance with provisions of the written construction contract. Portions of the written contract which are alleged to be material on the issue of liability are as follows:

'CONTRACTOR'S LIABILITY: The status of the Contractor in the work to be performed by him under this Contract is that of an independent Contractor and as such he shall properly safeguard against any and all injury or damage to the public, to public and private property, materials and things; and as such, he alone shall be responsible for any and all damage, loss or injury to persons or property that may arise, or be incurred, in or during the conduct or progress of said work, without regard to whether or not the Contractor, his Subcontractors, agents, or employees have been negligent; * * *.

'The Contractor shall take all necessary precaution to prevent damage to all overhead and underground structures and to protect and preserve property within or adjacent to the Site and shall be responsible for damage thereto. * * *.

'* * * The Contractor shall make good any damage or injury to public or private property whether within or outside of the areas covered by the Project and shall promptly make restitution for, or proceed to repair or otherwise restore such damage or injury to property as may be deemed necessary by the Engineer. * * *.'

'BLASTING. * * * Blasting may be done only to the depth, amount, and...