Burdette v. Maust Coal & Coke Corp.

• Decision Date: 17 February 1976
• Docket Number: No. 13333,13333
• Citation: 222 S.E.2d 293,159 W.Va. 335
• Court: West Virginia Supreme Court
• Parties: Rowena E. BURDETTE, Administratrix, etc., et al. v. MAUST COAL AND COKE CORPORATION, etc., et al.

Page 293

222 S.E.2d 293

159 W.Va. 335

Rowena E. BURDETTE, Administratrix, etc., et al. v. MAUST COAL AND COKE CORPORATION, etc., et al.

No. 13333.

Supreme Court of Appeals of West Virginia.

Feb. 17, 1976.

Syllabus by the Court

1. 'Section 12, chapter 131, Code (now W.Va.Code, 1931, 56--6--23, as amended) respecting the carrying from the bar by the jury of depositions or other papers read in evidence, leaves the subject in the sound discretion of the court; and, unless such discretion is clearly abused, the action of the court will not constitute reversible error.' Syllabus point 5., Cobb v. Dunlevie, 63 W.Va. 398, 60 S.E. 384 (1908).

2. 'It is error to give inconsistent instructions, even if one of them states the law correctly, inasmuch as the jury, in such circumstances, is confronted with the task of determining which principle of law to follow, and inasmuch as it is impossible for a court later to determine upon what legal principle the verdict is founded.' Opinion, State Road Commission v. Darrah, 151 W.Va. 509, 513, 153 S.E.2d 408, 411 (1967).

3. The rights involved in a case may be so intermingled that justice may require a new trial as to all parties in the event of the necessity of a new trial as to one of them.

4. 'Under the so called 'borrowed servant' rule a general employer remains liable for the negligent act of his servant unless it affirmatively appears that he has completely relinquished control of the servant's conduct from which the alleged negligence arose to the person for whom the servant is engaged in performing a special service.' Syllabus point 1., American Telephone and Telegraph Co. v. Ohio Valley Sand Co., 131 W.Va. 736, 50 S.E.2d 884 (1948).

5. The law presumes that the right to control employees remains in the general employers.

6. 'In a concurrent negligence case, the negligence of the defendant need not be the sole cause of the injury, it being sufficient that it was one of the efficient causes thereof, without which the injury would not have resulted; but it must appear that the negligence of the person sought to be charged was responsible for at least one of the causes resulting in the injury.' Syllabus point 5., Long v. City of Weirton, W.Va., 214 S.E.2d 832 (1975).

7. '(W)hether the negligence of two or more persons is concurrent and taken together proximately causes or contributes to the injury of another person is, as to all matters of fact, a question for jury determination.' Opinion, Evans v. Farmer, 148 W.Va. 142, 156, 133 S.E.2d 710, 718 (1963).

Henry C. Bias, Jr. and Arden J. Curry, Charleston, for appellants.

George S. Sharp, Charleston, for Maust Coal & Coke and Summersville Coal.

R. J. Thrift, Jr., Fayetteville, for Thomas and McKenzies.

Benjamin P. Brown, Parkersburg, for Carl C. Holbert.

PER CURIAM:

This appeal involves a motion to reverse a final order of the Circuit Court of Greenbrier County which overruled the appellants' (plaintiffs below) motion to direct a verdict for them as to liability and to grant a new trial on the question of damages alone, or in the alternative, to set aside the jury verdict in favor of the appellees (defendants below) and to award appellants a new trial.

Three consolidated wrongful death actions were brought by the movants, Rowena E. Burdette, Helen F. McClung, and Hilda F. Walkup, administratrices of their husbands' estates. Their husbands were killed in an accident on May 6, 1968 while mining coal for the Gauley Coal and Coke Company.

The record in this case is quite voluminous and reveals that a tremendous amount of testimony was presented during the two-week trial below. In 1960, two of the defendants below, Thomas and Eugene McKenzie, owned a tract of coal land, approximately 1200 acres in size, near Leivasy, West Virginia, in Nicholas County. For several years, they had operated on a small part of this tract an underground coal mine known as the Sugar Grove Coal Company No. 4 Mine. In 1961, the McKenzies began negotiations to lease most of their property to Maust Coal and Coke Corporation, also a defendant below. Negotiations were carried on with the then president of Maust Corporation, Mr. Joe L. McQuade, and with a member of the board of directors of Maust Corporation, who was also its general counsel, Mr. Brooks Callaghan. In accordance with procedures established by Mr. Ray Maust, the principal stockholder and chairman of the board of directors of Maust Corporation, the lease was actually taken in the name of Cherry River Coal Company, a wholly owned subsidiary of the Maust Corporation. By the terms of the lease, dated April 24, 1962, Cherry River acquired a lease on the 1200 acre plus tract excepting 68 acres, which the McKenzies reserved for five years for their own mining operation, the Sugar Grove No. 4 Mine.

Prior to the making of the lease agreement, in May 1961, the McKenzies hired H. P. Thomas, of the Bennett, Naeve & Thomas Engineering Company, to do the surveying work for the Sugar Grove No. 4 mine workings. Thomas, who was also a defendant below, thereafter made maps for the McKenzies reflecting the results of his surveys. The plaintiffs alleged in their complaint that a particular map prepared by Thomas was incorrect; Thomas insisted throughout the trial that his surveying and mapping were not in error.

After the making of the lease agreement, and during the five-year reservation, the McKenzies continued mining the Sugar Grove No. 4 Mine; in fact, there was additional mining conducted across the reservation line. Apparently, at no time were maps of the No. 4 Mine updated to indicate these further penetrations under the property leased to and to be mined by the Maust interests. The McKenzies, however, gave Mr. Bill Hill, an engineer for the Maust interests, a copy of the map prepared by Mr. Thomas in 1961 which did reflect some penetrations under the land being leased to Cherry River Company. The McKenzies testified that in 1964, when they gave the map to Hill, they warned him to approach this area which contained the penetrations with extreme caution. The McKenzies shut down their mine prior to the end of the five-year reservation. On April 24, 1967, the reserved area became subject to the lease to Cherry River and the McKenzie mine, at that time, was virtually full of water.

Meanwhile, the Maust Corporation, in the name of another wholly owned subsidiary, the Gauley Coal and Coke Company, commenced mining operations on the property. The Gauley Company was immune from this action because of compliance with the Workmen's Compensation laws. The engineering work for several of Maust Corporation's subsidiaries was performed by the engineering staff of Summersville Coal Company, also a defendant below and also a wholly owned subsidiary of Maust Corporation. Mr. Floyd Barnett, the Maust Corporation's Chief Engineer for the Southern Division, supervised all of the engineering work. In addition to supervising certain Summersvill Company employees, he also supervised survey crew members of Gauley Coal and Coke Company and Cherry River Coal Company. Barnett, who was the successor to Mr. Hill at Hill's death, was listed on the payroll of the Summersville Company as its employee.

It was at station 4 40, an engineering reference point within the Saxsewell No. 8 mine, where one of Barnett's crew made a critical survey error causing the 'Two Right Entry' to be about 90 feet off its intended course at the point the disaster occurred.

Chief Engineer Barnett, who was not a registered engineer, submitted maps on occasion to Mr. Carl C. Holbert, who was a registered engineer. Holbert, another defendant below, affixed his certification of accuracy and completeness, as required by law, to one map on January 3, 1967 and to another on January 15, 1968. On neither occasion did he visit or survey the mine itself.

The 1967 certified map of Sax No. 8 portrayed the abandoned mine workings of the McKenzie mine, while the 1968 certified map did not. Apparently a copy of this 1968 map or a map very similar, which also did not depict the nearby abandoned mine, hung in the mining office on the date of the Saxsewell inundation. Frank Davis, the Sax No. 8 mine foreman and superintendent, relied upon this office map in his work. He testified that if he had been aware of the proximity of the McKenzie mine he would have placed drill holes in advance of the mining as a safety precaution. Such procedure would have led to the safe discovery of the exact location of the abandoned mine.

In any event, on May 6, 1968, the miners working inside the Sax No. 8 mine were unaware that they were anywhere near the abandoned McKenzie mine filled with water. When a continuous mining machine in Sax No. 8 cut through into the McKenzies' abandoned mine, an estimated thirty-five million gallons of water poured into the Sax No. 8 mine killing four men, three of whom were the plaintiffs' husbands.

Several issues were raised by the pleadings and the evidence presented at the lengthy trial. These issues primarily dealt with whether the various defendants were guilty of negligence and whether their alleged negligence proximately caused or contributed to the mine disaster. Following the plaintiffs' presentation of their case, the defendants moved for directed verdicts; the trial court overruled the defense motions as to all defendants except Carl C. Holbert, whom the court rules not to be causally connected with the disaster. The case against all of the other defendants thereafter went to the jury which returned a verdict for the remaining defendants. The plaintiffs filed a motion requesting the court to set aside the verdict, to direct a verdict for the plaintiffs and to grant plaintiffs a new trial on the question of damages alone, or in the alternative to set aside the verdict and to award plaintiffs a new trial. The trial court overruled this motion and entered final judgment for the defendants by its order of January 15, 1972.

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