West v. National Mines Corp.

• Decision Date: 08 November 1985
• Docket Number: No. 16288,16288
• Citation: 336 S.E.2d 190,175 W.Va. 543
• Court: West Virginia Supreme Court
• Parties: Grat WEST and Mila West v. NATIONAL MINES CORP., etc., H & S Coal Co., a corporation; F & F Coal Co., a corporation, C.L. Coal Co., Inc., a corporation and Economy Fuel Co., Inc., a corporation.

Page 190

336 S.E.2d 190

175 W.Va. 543

Grat WEST and Mila West v. NATIONAL MINES CORP., etc., H & S Coal Co., a corporation F & F Coal Co., a corporation, C.L. Coal Co Inc., a corporation and Economy Fuel Co., Inc., a corporation.

No. 16288.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1985.

Decided July 9, 1985.

Rehearing Denied Nov. 8, 1985.

Syllabus by the Court

1. "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 find under the evidence, must be assumed as true." Syl. pt. 17, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

2. "After an evidentiary hearing on a complaint for a permanent injunction, a trial court is required to make a finding of fact and conclusion of law under Rule 52 of the West Virginia Rules of Civil Procedure, and findings and conclusions also should be made upon ruling on a motion to dissolve an injunction in order to assist appellate courts in determining whether there is a legitimate area for state regulation by injunction." Syl. pt. 4, United Maintenance and Manufacturing Co. v. United Steel Workers of America, 157 W.Va. 788, 204 S.E.2d 76 (1974).

D. Grove Moler, Mullens, for appellant.

E. Glenn Robinson, Charleston, Robert M. Worrell, Robert Browning, Jr., Paul R. Goode, Jr., Pineville, for appellees.

PER CURIAM.

This is an appeal from a final order of the Circuit Court of Wyoming County which denied the appellants' motion for a new trial and for permanent injunctive relief. The primary issues on appeal are the propriety of the jury verdict and the trial court's dissolution of a previously awarded temporary injunction. After careful review of the record, we conclude that although the jury verdict was weakly supported by the weight of the evidence, the dissolution of the temporary injunction was improper, and, we must therefore reverse.

The case was originally before this Court on an appeal from the dismissal of a complaint by the appellants and the denial of temporary injunctive relief in their favor. West v. National Mines Corp., 285 S.E.2d 670 (W.Va.1981). With respect to the cognizability of their complaint, this Court held in Syllabus Point 1 that:

A complaint that alleges an unreasonable, negligent, or unlawful use of public property which materially impairs the right of another to the enjoyment of his house and infringes upon the well-being, comfort, repose, and enjoyment of the regular, natural person residing therein, states a cause of action of which the courts of this State have cognizance.

With respect to the injunction issue, this Court stated that:

Given the gravity of harm to which the appellants have been subjected by the appellees' coal hauling activities, and the absence of evidence of any hardship which abatement of the nuisance would impose upon the appellees, we find that the trial court abused its discretion by denying the appellants' motion for preliminary relief. From the evidence produced at the hearing we must conclude that the appellants are entitled to a preliminary mandatory injunction requiring the appellees to abate the dust nuisance caused by the haulage of coal along route 8/1 from National's leasehold to its preparation facility.

West v. National Mines Corp., 285 S.E.2d at 679.

Pursuant to our opinion, the Circuit Court of Wyoming County issued the preliminary injunction which required the appellees to treat the road with water or other lawful application; to travel the route at reduced speeds to minimize the creation of dust; and, to operate the coal trucks in such a manner as to eliminate spillage. It appears from the evidence that compliance with the terms of this preliminary injunction has significantly reduced the dust problem.

On October 10, 1983, the case went to trial. Although testimony was presented on the severity of the dust problem, including the frequency of household cleaning, the damage to vegetables in the garden, the boiling of drinking water, and the wearing of surgical masks, the jury found that there were no damages.

In Syllabus Point 17 of Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), this Court restated the general rule that:

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 find under the evidence, must be assumed as true.

See also Syl. pt. 5, Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671 (1965); Syl. pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). Having reviewed the record and verdict, while giving every reasonable and legitimate inference to the appellees, we reluctantly affirm on the issue of damages.

Regarding the preliminary injunction issue, however, our perusal of the record requires us to conclude that the dissolution was procedurally improper. We stated in Syllabus Point 4 of United Maintenance and Manufacturing Co. v. United Steel Workers of America, 157 W.Va. 788, 204 S.E.2d 76 (1974) that,

After an evidentiary hearing on a complaint for a permanent injunction, a trial court is required to make a finding of fact and conclusion of law under Rule 52 of the West Virginia Rules of Civil Procedure, and findings and conclusions also should be made upon ruling on a motion to dissolve an injunction in order to assist appellate courts in determining whether there is a legitimate area for state regulation by injunction.

The trial court in the case at bar failed to set forth any findings of fact or conclusions of law in its sua sponte dissolution of the temporary injunction. Consequently, the trial court's noncompliance with Rule 52 of the West Virginia Rules of Civil Procedure leaves this Court questioning the rationale for the dissolution.

For the foregoing reasons, we direct the Circuit Court of Wyoming County to make findings of fact and conclusions of law and to reinstate the injunction. Therefore, we affirm the jury verdict and reverse and remand the order which dissolved the preliminary injunction.

Affirmed in part; reversed and remanded in part.

McGRAW, Justice, concurring in part and dissenting in part:

Although I concur in the majority's reinstatement of the injunction against the appellees in this case, even indulging every reasonable and legitimate inference in favor of the appellees compels an unmistakable conclusion that the verdict of the jury was decidedly against the clear and unequivocal weight of the evidence presented.

Grat West, since deceased, who suffered from both heart and lung disease, testified that the dust created by the appellees' activities adversely affected his ability to breathe, and, particularly, made sleeping difficult. In fact, he admitted on cross-examination that at one point the dust became so oppressive that he placed oil on the road even though he was aware of its illegality, protesting that, "Is it against the law ... to try to save your life." When asked concerning his description of the dust problem, Mr. West replied:

The nearest word I know to use is horrible. Dust was so bad you couldn't even. ... A truck go by and you couldn't even see whether it was a truck or mule because the dust was so bad. It would get into the air, hang up there like a cloud, hung there all day and all night. You could go out on the porch sometimes 1:00 or 2:00 o'clock in the morning, midnight at night and try to get a breath of fresh air, and the dust is just as bad then as it is in the day because if you open your mouth your mouth is filled up with it, and they never made any attempts to do anything with the dust. I personally have begged everyone of them, pleaded with them to just help do something with it. Each one would say the fault belonged to the other one, and that went on and on and on until suit was finally brought.

Mila West, Grat's wife of forty-nine years, testified primarily concerning the domestic difficulties created by the dust. She described the dust as having "an oily texture" that made it "something that you can't wash off." She related that the dust permeated the house, including enclosed areas such as closets and cupboards, as a film so thick "you can write your name," requiring removal of the draperies twice weekly for cleaning. Mrs. West also testified concerning the blanket of dust outdoors surrounding her home, stating that, "It is on my corn; it is on my cucumbers; on my tomatoes; on anything in the garden," and "when you go to push the lawn mower ... the dust would just boil up." Finally, at the conclusion of her direct examination, Mrs. West asked if she could state that:

It is awfully hard to have to live with my husband, sleep with him in the bed, listen to him turn over. Every time he turns over, even in oxygen, he is coughing, and in the last little while he has began to cough up, I guess, about two spoonfuls of blood at the same time, and this is just getting worse instead of getting better. The oxygen is not doing the job. The doctors told me it wouldn't, so I don't know. That is what I was wanting to say. It just interrupts your whole life.

Debbie Christine West Rambo, the West's daughter, who had periodically lived and visited with her parents during the time in question, also testified concerning the extent of the dust problem. In addition to corroborating her parents' testimony, she testified that laundry could not be hung outside to dry during the week when the coal trucks were operating; that some produce had to be occasionally discarded when it could not be cleaned thoroughly; that even in the heat of summer all the doors and windows had to be closed to fight the dust; and, that the dust was so thick at times that it hung...