Tri-State Asphalt Products, Inc. v. McDonough Co., TRI-STATE

• Citation: 391 S.E.2d 907,182 W.Va. 757
• Decision Date: 13 April 1990
• Docket Number: No. 18990,TRI-STATE,18990
• Court: Supreme Court of West Virginia
• Parties: ASPHALT PRODUCTS, INC. v. McDONOUGH COMPANY.

Page 907

391 S.E.2d 907

182 W.Va. 757

TRI-STATE ASPHALT PRODUCTS, INC. v. McDONOUGH COMPANY.

No. 18990.

Supreme Court of Appeals of

West Virginia.

April 13, 1990.

Syllabus by the Court

1. "As a general rule photographs of persons, things, and places, when duly verified and shown by extrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused." Syl. pt. 1, Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953), appeal dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067 (1954).

2. "If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal." Syl. pt. 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980).

3. "Extrinsic evidence of statements and declarations of the parties to an unambiguous written contract occurring contemporaneously with or prior to its execution is inadmissible to contradict, add to, detract from, vary or explain the terms of such contract, in the absence of a showing of illegality, fraud, duress, mistake or insufficiency of the consideration." Syl. pt. 1 Kanawha Banking & Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947).

4. "The essential elements in an action for fraud are: '(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied upon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it.' Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927)." Syl. pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981).

5. "Allegations of fraud, when denied by proper pleading, must be established by clear and convincing proof." Syl. pt. 5, Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182 (1949).

6. "And where both parties to a contract have equal means and opportunity to acquire information, so that by ordinary diligence either may rely on his own judgment, they will be presumed to have done so, and if not, they must abide by the consequences of their own folly or carelessness." Syl. pt. 6, Jones v. McComas, 92 W.Va. 596, 115 S.E. 456 (1922).

7. " 'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.' Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767." Syl. pt. 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957).

8. "In order to secure punitive damages, a defendant must be shown to have engaged in a wilful, wanton, reckless, or malicious act." Syl. pt. 5, Bennett v. 3 C Coal Co., 180 W.Va. 665, 379 S.E.2d 388 (1989).

Richard A. Bush, Bush & Trippel, Parkersburg, for Tri-State Asphalt Products, Inc.

Robert W. Full, Goodwin & Goodwin, Parkersburg, Eric P. Reif, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for McDonough Co.

PER CURIAM.

The appellant, Tri-State Asphalt Products, Inc., appeals a final order of the Circuit Court of Wood County dated October 16, 1987, which denied the appellant's motion for a new trial. The appellant contends that the circuit court erred in: (1) refusing to permit the appellant to introduce into evidence a photograph of one of the aggregate stockpiles; (2) refusing to allow the appellant's accountant to testify regarding the manner in which workers' compensation benefits were reflected on the accounting balance sheets; (3) finding as a matter of law that the supplemental agreement between the parties was ambiguous on its face; and (4) granting a directed verdict in favor of the appellee, McDonough Company, on the issues of fraud and punitive damages. We find no reversible error and accordingly, the order of the circuit court is affirmed.

On September 12, 1980, the parties entered into a written contract for the purchase and sale of the assets of Ohio River Sand and Gravel. The parties subsequently executed a supplemental agreement on December 29, 1980, the same day on which the closing took place.

On March 12, 1981, the appellant filed a complaint against the appellee in which the appellant alleged, among other things, that it had suffered damages because: (1) the stock piles of inventory purchased from the appellee "contained hidden and concealed cores of useless fill material and dirt" which the appellee failed to disclose; (2) the appellee refused to deliver certain workers' compensation deposits; and (3) the appellee failed to pay accrued hourly vacations. The appellant requested that a judgment be entered against the appellee in the amount of $473,409.57 for compensatory damages and $500,000.00 for punitive damages.

On May 12, 1981, the appellee filed its answer and counterclaim. In its counterclaim, the appellee asserted that certain adjustments were to be made between the parties to reflect prorations as of the closing for real estate and property taxes, unemployment compensation taxes and insurance, payroll expenses, rental expenses and similar items. The appellee contended that as a result of these contractual provisions, the appellant owed it the sum of $25,036.98. Furthermore, the appellee maintained that the appellant owed it an account receivable in the sum of $6,489.53.

The trial began on June 23, 1987. At the conclusion of the appellant's evidence, the trial judge entered a directed verdict in favor of the appellee on the issues of fraud and punitive damages. At the conclusion of all the evidence, the jury returned verdicts in favor of the appellee on the issues of the workers' compensation deposits and the accrued vacation pay.

The appellant filed a motion for a new trial on July 22, 1987. Following a hearing on that motion, the circuit court entered an order on January 19, 1988, denying the appellant's motion for a new trial. It is from that order that the appellant appeals.

I

The appellant first contends that the circuit court erred in refusing to permit it to introduce into evidence a photograph of one of the aggregate stockpiles. The appellee asserts that the court's refusal to allow the photograph into evidence was not error and that the circuit court is vested with broad discretion in determining the admissibility of photographs.

This Court recognized in syllabus point 1 of Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953), appeal dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067 (1954) that whether a particular photograph should be admitted in evidence rests in the sound discretion of the trial court:

As a general rule photographs of persons, things, and places, when duly verified and shown by extrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused.

In the instant case, the photograph was a picture of a golf ball placed beside a hole revealing the interior of one of the aggregate stockpiles. The purpose of the photograph was to show the contrast in color between the sand on the exterior of the pile and the sand on the interior of the pile. ¹

Yet, even if the photograph were admissible, we do not find it to be a crucial piece of evidence since several witnesses testified concerning the condition of the stockpiles. See West Virginia Dep't of Highways v. Delta Concrete Co., 165 W.Va. 398, 401, 268 S.E.2d 124, 127 (1980); syl. pt. 3, Elswick v. Charleston Transit Co., 128 W.Va. 241, 36 S.E.2d 419 (1945). Therefore, the exclusion of this photograph by the trial judge did not constitute an abuse of discretion.

II

The appellant next asserts that it was error for the trial court to exclude the testimony of the appellant's accountant regarding the manner in which the workers' compensation deposits were reflected on the appellee's financial statements since those statements were not produced at trial. The appellee contends that the appellant's witness, Harold S. Skinner, did testify concerning the location of the workers' compensation deposits on the balance sheets.

The appellant did not produce either the original or a copy of the balance sheets at trial. ² When the appellee objected to the testimony of the appellant's accountant, Lawrence Dennis Priebe, regarding the location of the workers' compensation deposits on the balance sheets, the trial judge sustained the objection on the ground that the balance sheets would be the best evidence under Rule 1002 of the West Virginia Rules of Evidence. ³ The appellant did not respond to the objection nor was any attempt made to vouch the record concerning the balance sheets or the use of Mr. Priebe's testimony as secondary evidence in place of those records.

We stated in syllabus point 1 of Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980):

If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the...