Robinson v. Kistler
| Decision Date | 12 November 1907 |
| Citation | 59 S.E. 505,62 W.Va. 489 |
| Parties | ROBINSON et al. v. KISTLER. |
| Court | West Virginia Supreme Court |
Submitted June 7, 1907.
Syllabus by the Court.
This court being called upon to review the action of a trial court in setting aside a verdict and awarding a new trial, it will inquire from the record what errors, if any, sufficient to justify such action, were committed at the trial to the prejudice of the party against whom such verdict was rendered, and whether such verdict is plainly contrary to law and the evidence.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3477.]
When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answers, be subsequently contradicted by the party so cross-examining.
[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses § 1273.]
A lease for coal mining purposes stipulates for a fixed minimum royalty, to be payable from a stated time, and provides that if the lessee is disabled or prohibited from mining or shipping coal, by reason of strikes, accidents, or any cause of stoppage of transportation over which the lessee has no control, the minimum royalty shall be suspended for the period of such disability. Held:
(a) That the words "over which the lessee has no control" are practically synonymous with "for which the lessee is not to blame," or "without the fault of the lessee," and relate only to the personal or immediate control of the lessee.
(b) That the obligation to pay the minimum royalty ceases during any period of such disability, and for such period the lessee is liable only for royalty on the coal actually mined and shipped.
Error from Circuit Court, Harrison County.
Action by Camisee D. Robinson and others against Flavius J. Kistler. Judgment for plaintiffs, and defendant brings error. Affirmed and remanded.
Davis & Davis, for plaintiffs in error.
John Bassel and L. C. Crile, for defendant in error.
The writ of error herein is prosecuted to the action of the circuit court of Harrison county in setting aside a verdict rendered in favor of the defendant below and granting to the plaintiffs there a new trial. Camisee D. Robinson and others instituted their action against Flavius J. Kistler, in assumpsit, at March rules, 1904, for the recovery of royalties alleged to be due and unpaid upon a certain lease for coal mining purposes, executed by the plaintiffs to the defendant on the 11th day of January, 1901. The general issue was joined, and upon trial had the jury found a verdict in favor of the defendant. Thereupon the plaintiffs moved to set aside the verdict of the jury, and, the motion being considered by the court, the verdict was set aside and a new trial awarded, and the defendant excepted.
The lease declared upon, and under the terms of which payment for royalty was demanded in said action, contained the following clause: There is on conflict of testimony on any material point, and the record shows that defendant began shipments of coal under the lease on May 8, 1902; that for all the coal actually mined and shipped during the period covered by the declaration the defendant made payment to the plaintiffs; that the defendant was never, after he began shipments of coal, furnished, by the only railroad company or public carrier by which transportation could be had from the mine, with sufficient railroad cars to mine and transport the minimum amount of coal stipulated in the lease; that the defendant was urgent and insistent in his efforts to secure such supply of railroad cars; that such lack of supply of cars was beyond his personal control; and that by reason of the failure to receive a sufficient supply of railroad cars he was disabled and prohibited from mining and shipping the minimum amount agreed. The mining lease in question was introduced upon behalf of plaintiffs, and is the basis of their action. The case coming here upon error assigned to the action of the court below in setting aside the verdict in favor of defendant and awarding plaintiffs a new trial, we are therefore called upon to inquire from the record what errors, if any, the trial court had committed to the prejudice of the plaintiffs, and that justified a disturbance of the verdict, or whether or not said verdict was contrary to law and the evidence.
An exception was reserved by the plaintiffs to the action of the court in overruling their motion made during the trial to strike out so much of the testimony of the defendant, as a witness in his own behalf, as relates to inadequate car supply, on the ground, as alleged, "that the contract provides that the payment of the royalty shall only be suspended because of stoppage of mining and shipping of coal." But, in view of the stipulation in the lease that the minimum royalty shall be suspended for the period that the lessee is disabled or prohibited from mining or shipping coal by reason of strikes, accidents, or any cause of stoppage of transportation over which the lessee had no control, it is observed that the objection to the testimony was not well taken and was properly overruled. It will certainly not be argued that a failure in car supply is not a cause of stoppage of transportation. The ground alleged as a basis for said motion contains a faulty recital of the terms of the lease.
It appears that at the close of defendant's testimony the plaintiffs recalled a witness, who was asked if he ever applied to the coal office of the mine for permission to examine the books and see as to the shipments of coal, and was refused. There was objection by defendant to the question, which objection was sustained, and the plaintiffs excepted. The only purpose of this question could have been for rebuttal of matter brought out on the cross-examination of the defendant, and which we find to be wholly collateral and immaterial to the real controversy, and not related to or connected with anything that the witness had been asked or testified in chief. It was properly rejected. "When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question." 1 Wharton on Evidence, § 559; State v. Goodwin, 32 W.Va. 177, 9 S.E. 85.
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