State ex rel. Shatzer v. Freeport Coal Co.

• Decision Date: 10 March 1959
• Docket Number: No. 10991,10991
• Citation: 144 W.Va. 178,107 S.E.2d 503
• Parties: STATE ex rel. Robert SHATZER v. FREEPORT COAL COMPANY et al.
• Court: West Virginia Supreme Court

Page 503

107 S.E.2d 503

144 W.Va. 178

STATE ex rel. Robert SHATZER v. FREEPORT COAL COMPANY et al.

No. 10991.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 20, 1959.

Decided March 10, 1959.

Syllabus by the Court.

1. Reasonable attorneys fees, incurred by the party enjoined in procuring the dissolution of an injunction which was wrongfully issued, are recoverable as an element of damages in an action upon an injunction bond.

2. In an action upon an injunction bond speculative and remote damages are not properly allowable, nor are those which are merely consequential, the limit being such damages as flow directly from the injunction as its immediate consequence.

3. In an action upon an injunction bond damages which are remote, conjectural, or speculative, can not be recovered. There must be proof which furnishes reasonable certainty of damage and the amount of the damage.

4. Jurise will not be permitted to base their findings upon conjecture or speculation.

5. Loss of profits can not be based on estimates which amount to mere speculation and conjecture but must be proved with reasonable certainty.

6. The verdict of a jury in favor of a plaintiff, based on testimony which does nothing more than furnish ground for conjecture or speculation, as to the proper verdict to be returned, can not be justified, and will be set aside by this Court.

7. A verdict clearly in excess of the amount which the evidence shows the plaintiff is entitled to recover should be set aside by the trial court.

Spilman, Thomas, Battle & Klostermeyer, Howard R. Klostermeyer, Charleston, R. Doyne Halbritter, Kingwood, for plaintiffs in error.

Milford L. Gibson, Elkins, James T. Dailey, Jr., Kingwood, for defendant in error.

HAYMOND, Judge.

In this action of debt instituted in the Circuit Court of Preston County in 1957, the plaintiff, the State of West Virginia, for the use of the relator Robert Shatzer, seeks to recover damages from the corporate defendants, Freeport Coal Company and United States Fidelity and Guaranty Company, upon a bond executed by them to make effective an injunction against the relator issued at the instance of the defendant Freeport Coal Company in the suit in equity of Freeport Coal Company against Nina Mabel Graham and the relator Robert Shatzer lately pending in the Circuit Court of Preston County.

At the time of the issuance of the injunction on April 20, 1954, the relator, Robert Shatzer, was engaged in mining, by the strip mining method, the Bakerstown seam of coal from a tract of 350.75 acres of land in Pleasant District, Preston County, under a verbal lease from Nina Mabel Graham who claimed to be the owner of the coal.

By the injunction, issued at the instance of the defendant Freeport Coal Company, which also claimed to be the owner of the coal, the relator was prevented from mining and removing the Bakerstown seam of coal from the foregoing tract of land during the period April 20, 1954 to April 10, 1956, when the injunction was dissolved and the claim of the defendant Freeport Coal Company to ownership of the coal was denied following a decision of this Court in the companion case of Freeport Coal Company v. Valley Point Mining Company, 141 W.Va. 397, 90 S.E.2d 296.

The items constituting the claim of the plaintiff, as set forth in the declaration and the bill of particulars are: 1. rental value of equipment during the term of the injunction, $53,139.75; 2. strip mining bond premium during the term of the injunction, $75.00; 3. cost of moving equipment from the mining operation to another location, $3,395.00; 4. cost of moving equipment back to the operation, $4,074.00; 5. attorneys fees in connection with the dissolution of the injunction, $350.00; 6. loss by oxidation of uncovered coal, $2,320.00; and 7. loss of contract for sale of coal, $32,000.00.

To the declaration each defendant filed its separate plea of the general issue. Upon the trial of the case the jury returned a verdict for the plaintiff against the defendants in the sum of $21,500.00. The circuit court overruled the motion of the defendants to set aside the verdict and grant a new trial and on July 31, 1957 rendered judgment in favor of the plaintiff for the amount of the verdict, with interest and costs. To that judgment this Court granted this writ of error on May 19, 1958, upon the petition of the defendants.

It is settled law in this State that reasonable attorneys fees, incurred by the party enjoined in procuring the dissolution of an injunction which was wrongfully issued, are recoverable as an element of damages in an action upon the bond required by Section 9, Article 5, Chapter 53, Code, 1931. State of West Virginia for Use of Stout v. Rogers, 132 W.Va. 548, 52 S.E.2d 678; Humphrey Manufacturing Company v. City of Elkins, 93 W.Va. 16, 115 S.E. 846; State, Use of Lambert v. Armentrout, 77 W.Va. 198, 87 S.E. 182; State v. Friedman, 74 W.Va. 11, 81 S.E. 830; State ex rel. Hudson v. Nash, 72 W.Va. 812, 79 S.E. 829; State ex rel. Citizens' National Bank v. Graham, 68 W.Va. 1, 69 S.E. 301; State ex rel. Tully v. Taylor, 67 W.Va. 585, 68 S.E. 379; State ex rel. Kloak Brothers and Company v. Corvin, 51 W.Va. 19, 41 S.E. 211; State for Use of Levy v. Medford, 34 W.Va. 633, 12 S.E. 864. See also 43 C.J.S., Injunctions, Section 315f(1); State ex rel. Perry v. Adkins, 116 W.Va. 217, 179 S.E. 816; State ex rel. Meadow River Lumber Company v. Marguerite Coal Company, 104 W.Va. 324, 140 S.E. 49, 55 A.L.R. 452.

The statute relating to the bond required to render an injunction effective provides, in part, that the condition of the bond shall be to pay all such costs as may be awarded against the party obtaining the injunction, and also such damages as shall be incurred or sustained by the person enjoined, in case the injunction be dissolved.

The defendants do not question the right of the plaintiff to recover in this action the item of attorneys fees of $350.00 or the item of the strip mining bond premium of $75.00 which accrued during the period the injunction was in effect and they concede that those two items may be recovered as elements of damages in an action upon the injunction bond.

The circuit court refused to permit the plaintiff to recover any sum for item 1, consisting of rental value of equipment, or item 6, consisting of loss by oxidation of uncovered coal, on the ground that item 1 was not a proper element of damages and also because of lack of sufficient proof of any portion of either of those items and, as there is no cross assignment of error by the plaintiff as to those items, they present no question for consideration or decision upon this writ of error.

The three other items included in the claim of the plaintiff, item 3, representing cost of moving equipment from the mining operation to another location in the amount of $3,395.00, item 4, representing cost of moving equipment back to the operation in the amount of $4,074.00, and item 7, representing loss of contract for the sale of coal in the amount of $32,000.00, remain for consideration; and the controlling question to be determined upon this writ of error is whether the proof establishes all or such part of those items in an amount equal to, or sufficient to support, the verdict returned by the jury in the sum of $21,500.00.

When the injunction was issued on April 20, 1954, the relator Robert Shatzer had been mining the Bakerstown seam of coal upon the tract of 350.75 acres since January 1954, a period of about four months. Under his lease from Nina Mabel Graham he was required to pay a royalty of twenty five cents per ton. He had sold some of the coal which he had mined for $2.28 and $2.33 per ton. He had orders but no contract for the sale of approximately 24,650 tons of coal at the price of $3.60 per ton and his operation was capable of producing from 8,000 to 12,000 tons of coal per month from the Bakerstown seam.

When the injunction became effective there were approximately 200,000 tons of recoverable coal of the Bakerstown seam in the tract of 350.75 acres and while the injunction was in force none of that coal was mined by the relator. In January 1957, following the dissolution of the injunction on April 10, 1956, the relator resumed his mining operation on the tract of 350.75 acres and from that time until the trial in June 1957 he continued to mine coal from that tract of land. The price at which he has sold the coal mined since the dissolution of the injunction has been at least $3.95 per ton.

Within about two and one-half months after the injunction became effective the relator moved his mining equipment from the 350.75 acre tract to another location, about fifteen or sixteen miles from his Bakerstown coal operation, and during the period the injunction was in effect, he conducted a strip mining operation in the Freeport seam of coal. This continued until the dissolution of the injunction; and within a few weeks after the injunction was dissolved the relator moved his mining equipment back to the 350.75 acre tract and used the equipment in the resumption of that operation.

While the injunction was in effect from April 20, 1954 to April 10, 1956, and while operating the Freeport seam of coal at another location during that period the relator mined and sold 200,227.90 tons of Freeport coal at an average price of $2.27 per ton for which he received the total amount of $455,538.94. After deducting royalty of $43,462.05 the gross income from the Freeport operation was $412,076.89. The expenses of that operation during that period amounted to $345,568.56. The difference between the gross income of $412,076.89 and the total expenses of $345,568.56 represented the net profit of $66,508.33.

As to the operation of the Bakerstown seam of coal on the 350.75 acre tract which was interrupted and entirely suspended by the injunction during the period it was in effect, the relator estimated that he would have mined and sold...