Green v. Henderson, 10328

• Decision Date: 13 November 1951
• Docket Number: No. 10328,10328
• Citation: 136 W.Va. 329,67 S.E.2d 554
• Parties: GREEN et al. v. HENDERSON et al.
• Court: West Virginia Supreme Court

Page 554

67 S.E.2d 554

136 W.Va. 329

GREEN et al. v. HENDERSON et al.

No. 10328.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1951.

Decided Nov. 13, 1951.

Syllabus by the Court.

The judgment in a law action heard by a court, in lieu of a jury, will be given the same force in this Court as though based on the verdict of a jury, and will not be disturbed unless plainly wrong, or without any evidence to support it.

Crockett & Tutwiler, J. Strother Crockett, Welch, for plaintiff in error.

M. E. Boiarsky, Hillis Townsend, Charleston, for defendants in error.

FOX, President.

P. R. Henderson, L. E. Groseclose and P. J. Groseclose, partners, trading and doing business as the Sewell Pocahontas Coal Company, hereafter referred to as Sewell Company, leased from Peoples Pittsburgh Trust Company, trustee, a boundary of coal in McDowell County on which was located at least three openings or mines, from which coal could be mined and marketed, known as mines Nos. 1, 2 and 3. The Sewell Company operated mine No. 1, and this litigation is not in any way related to that operation. About May, 1948, it entered into an arrangement with one Floyd Green by which he was to operate mine No. 2. It seems to have been contemplated that there was to be a written agreement touching the terms and conditions of the contract under which Green was to operate said mine, and a writing was prepared, and there being some objection thereto on the part of Green, the writing was corrected to meet such objection, but for some reason it was never signed. It is admitted, however, that mine No. 2 was afterwards operated by Green closely following the terms of said unsigned writing. Sometime later one Charles H. Kitchen entered into an oral agreement of the same nature to mine coal from mine No. 3, and he enlisted the aid of his brothers-in-law, Duey Odum and Adam Lee, and they all continued to work in said mine until late in June, 1949. It seems to be agreed that the Kitchen agreement was the same as that under which Green was operating, and, therefore, the same questions are presented on this writ.

The controversy between the said Green, Odum and Lee on the one hand, and the Sewell Company on the other, grows out of the payment of vacation pay to which Green, Odum and Lee, members of the United Mine Workers of America, claimed to be entitled under a then existing agreement, which is known as the National Bituminous Coal Wage Agreement of 1948, and to which the Sewell Company was a party, providing for vacation pay on the basis of $100 per year.

On September 24, 1949, Floyd Green instituted his action against Sewell Company before a justice of the peace of McDowell County, in which he sought to recover $291.60 which he contended covered vacation pay due from him to his employees, and $38.97 due him for coal mined and delivered under his agreement. A like action was instituted by Adam Lee, on the same date, in which the claim was for $83.33 vacation pay to Lee, $66.67 vacation pay claimed to be due employees working in the mine, and $110.10 for coal delivered, or a total of $257.21. In the Duey Odum case there was a claim for the same amount, based on the same claims. Judgments for the defendants were entered by the justice of the peace in each of said actions.

Each of the three cases above mentioned was appealed to the Circuit Court of McDowell County, and by agreement trial had before the judge of that court in lieu of a jury. The sum of $38.97 was tendered to Green, and the sum of $110.10 to Duey Odum, and a like amount to Adam Lee, these amounts being for coal delivered, leaving the balance of the claims to rest upon the question of whether the defendants, in each of the cases were liable for the vacation pay of the plaintiffs and their employees. The court entered judgments in each of the cases for the full amount of claims in the actions before the justice of the peace, with costs to plaintiffs, including fee of $5 to be taxed as costs in each case. The cases were heard together in the circuit court, were presented to this Court as one case, and are now heard together, all by agreement of the parties involved.

As indicated above, the questions presented in each case are first, whether the plaintiffs were themselves entitled to vacation pay, as employees of the defendants, and, second, whether the defendants are liable to the plaintiffs for the vacation pay of their employees, as a part of their wages under the National Bituminous Coal Wage Agreement, to be paid to them as employees of the Sewell Company. The contention of the defendant, Sewell Company, is that it is not liable to pay the vacation pay of Green, Odum and Lee, because they were lessees of said mines, supervising and controlling separate businesses from that operated by the Sewell Company, and that the employees of the said Green, Odum and Lee, while entitled to vacation pay, must look to their immediate employers for that pay, and that the Sewell Company is in no wise responsible therefor.

A decision of these contentions requires a study of the terms of the agreement under which the parties operated.

The first and original agreement seems to have been entered into between the Sewell Company and Floyd Green, resulting in the preparation of a writing, intended to embody the agreement, which writing was afterwards corrected to meet the objections of Green to the first paper, but for some unexplained reason never signed. It is clear, however, that the...