Boomer Coal & Coke Co. v. Osenton

• Decision Date: 25 May 1926
• Docket Number: 5619.
• Citation: 133 S.E. 381,101 W.Va. 683
• Parties: BOOMER COAL & COKE CO. v. OSENTON.
• Court: West Virginia Supreme Court

133 S.E. 381

101 W.Va. 683

BOOMER COAL & COKE CO. v. OSENTON.

No. 5619.

Supreme Court of Appeals of West Virginia.

May 25, 1926

Submitted May 11, 1926.

Syllabus by the Court.

Where the matters in controversy in an action at law are submitted by the parties to arbitration, under the provisions of the statute, and all parties thereto are afforded an opportunity to be heard and present all their evidence to the arbitration tribunal, the court will not thereafter, on an application to set aside the award made therein, review the evidence submitted for the purpose of determining the correctness of said award, in the absence of corruption or partiality in the arbitrators, or fraud practiced by one of the parties to the arbitration.

In such case, where the strict rules of legal procedure are waived under the terms of the arbitration, the award will not be set aside for a mistake of law, unless it is so glaring as to shock the conscience and warrant the conclusion that the arbitrators were biased, prejudiced, or influenced by some ulterior motive.

Where all matters embraced in an action of covenant in a coal lease for loss and abandonment of coal in divers tracts of land are submitted to arbitration, no proof being offered of loss of coal under one tract, a finding in the award that no coal was lost in said area is conclusive against the withdrawal of said tract from the arbitration and amounts to an adjudication of this particular part of the subject-matter.

If there is nothing in the submission, providing how the award should be published or communicated to the parties, no particular form or kind of notice to the parties is required.

After the arbitrators had made their decision and openly announced it, the fact that one of counsel for the prevailing party, at the instance of the arbitrators and in the absence of opposing counsel, put in form the finding as theretofore announced, is not ground for setting aside the award although at the same time the arbitrators solicited and received the opinion of such counsel as to the legal effect of a certain finding therein.

In case the agreement of submission provides that the award may be binding when made and signed by any two of the arbitrators such award will not be vitiated because one of the arbitrators was absent at a session of the board after all the evidence had been taken and their finding was under consideration, where it does not appear that the absent arbitrator had not notice of such session.

Where it was neither expressly nor impliedly provided in an agreement of arbitration that the arbitrators make a personal inspection of the premises, and no request was made that they do so by either party to the arbitration, it is a matter within the discretion of the arbitrators whether such inspection be made. The failure to do so under such circumstances will not amount to misconduct on their part.

Additional Syllabus by Editorial Staff.

In arbitration, if bill of particulars was insufficient, party's remedy was to object to evidence or move to exclude it, and having failed to do either, objection to bill of particulars was waived, in view of Code, c. 130, § 46, even though rule applicable in court proceedings applied.

Appeal from Circuit Court, Fayette County.

Suit by the Boomer Coal & Coke Company against M. H. Osenton to impeach and set aside an award of arbitrators. From a decree dismissing the suit, plaintiff appeals. Affirmed.

Payne, Minor & Bouchelle, of Charleston, for appellant.

Osenton & Lee, of Fayetteville, for appellee.

WOODS J.

The sufficiency of a bill in chancery to invalidate an award of arbitrators is the sole question involved in this appeal.

The Boomer Coal & Coke Company is the owner and operator of certain coal mining properties in the county of Fayette. Included in the property operated by it are two tracts of land consisting respectively of 1,000 acres and 174 acres, an undivided one-half interest in fee in which is owned by it, and the remaining one-half undivided interest is owned by M. H. Osenton, whose predecessors in title leased her said one-half undivided interest in said two tracts to said coal company, by lease dated August 15, 1900. On the 11th day of April, 1922, M. H. Osenton instituted an action in covenant in the circuit court of Fayette county, against said coal company, returnable to May rules, 1922, at which rules her declaration in said cause was filed, alleging breach of the covenant of said lease "to prosecute and carry on its operations under this lease in an active, vigorous, safe, skillful, and workmanlike manner according to the rules of good mining and the laws of the state of West Virginia, and in such a manner as to mine all the merchantable coal practicable, having due regard as to value of the demised premises as coal property," and the loss and abandonment thereby of a large tonnage of coal in said two tracts. This declaration declared upon the said lease of August 15, 1900, damages being laid at $25,000 in both the writ and declaration, and alleging a total loss and abandonment in the 1,000-acre tract of 777,000 tons of coal, upon a royalty of 3 cents per ton of 2,240 pounds. And the said declaration contained the further like averment as to a tract of 328 acres, without specifying the tonnage of coal lost.

In pursuance of section 1, c. 108, Code, providing for the submission to arbitration of controversies in a pending suit, the parties to this appeal, on the 25th day of November, 1924, entered into the following agreement of submission:

"Whereas, the above-entitled action brought by the plaintiff, M. H. Osenton, against the defendant, Boomer Coal & Coke Company, is now pending in the circuit court of Fayette county, W.Va., in which plaintiff claims damages from the defendant in the sum of $25,000, as shown by the declaration, a copy of which is attached hereto and made a part of this agreement;

And whereas, the defendant denies any liability on account of said claim;

And whereas, in order to avoid the cost and inconvenience of a trial of said case in court, the parties hereto have mutually agreed that all matters in controversy within the scope of said suit shall be adjusted, settled, and finally determined by arbitration:

Now, therefore, this agreement witnesseth that, in consideration of the premises, the parties hereto mutually agree as follows:

(1) That the said controversy shall be and the same is hereby submitted to the arbitrators hereinafter named, who shall hear, settle, and determine by arbitration the matters in controversy within the scope of said suit; and the following parties are hereby agreed upon as arbitrators and authorized to act in the premises, viz.: J. S. Thurmond, of Alderson, W.Va., E. M. Merrill, of Charleston, W.Va., and George Wolfe, of Beckley, W.Va.

(2) All matters in controversy arising in this proceeding shall be submitted to said arbitrators, and it is agreed that the finding and award made by said arbitrators in writing and signed by them or by any two thereof shall be final and taken and accepted as a complete adjustment of all matters in controversy in said cause, and shall be entered as the judgment of the court.

(3) Said arbitrators shall make such examination of the premises as they may deem necessary and proper, and examine such maps and hear such testimony as may be offered by the parties hereto, which testimony shall be taken under the general rules and regulations governing testimony offered in court, but it is agreed that strict rules of procedure will be waived.

(4) That said arbitrators, when they have made such examination of the premises as they may desire, and have heard and considered the evidence of the parties hereto, shall make their finding and report in writing which shall be final as aforesaid and entered as the judgment of the court.

(5) Before proceeding to act, the said arbitrators shall take the oath prescribed by law in such cases, unless waived by the parties.

(6) Said arbitrators shall have the authority to fix and determine upon the place of hearing such evidence as may be offered by the parties, in addition to the examination of the premises to be made by the arbitrators.

(7) The prevailing party shall recover costs of this arbitration, and the same shall be taxed in the judgment of the court as a part of the cost of the case.

In witness whereof the said M. H. Osenton has hereunto set her hand and seal and the said Boomer Coal & Coke Company has caused its corporate name to be signed and its corporate seal affixed thereto by its president, thereunto duly authorized.

Boomer Coal & Coke Company,

By Michael Gallagher, Vice President.

[Corporate Seal.]

M. H. Osenton [Seal]."

On the 14th day of February, 1925, the coal company tendered and filed its ten several special pleas in such action in covenant. Special plea No. 1 was for the purpose of putting the entire lease in the record, which was not done by the declaration. Special plea No. 2 is the general plea of covenants performed. The other pleas were for the purpose of raising the statute of limitations, to which replication was made, and pleading specially certain provisions of the lease. The three arbitrators fixed March 2, 1925, for the hearing of the matters submitted to them, and the place the Kanawha Hotel in the city of Charleston.

Mrs Osenton furnished the coal company with a bill of particulars referring to a plat and specifying thereon what portions or sections of the leased premises were claimed to have been lost or abandoned, setting out the tonnage in each; the minimum total loss claimed in the No. 2 gas seam being 571,000 tons. In the Eagle seam the areas were likewise marked on a plat where coal was lost, as "abandoned," "recovery improbable," "slight...