Hughes v. Nat'l Fuel Co., (No. 8848)
| Decision Date | 20 June 1939 |
| Docket Number | (No. 8848) |
| Parties | W. T. Hughes, et al. v. National Fuel Company |
| Court | West Virginia Supreme Court |
W. T. Hughes, et al.
v.
National Fuel Company
Supreme Court of Appeals of West Virginia.
Submitted May 9, 1939.
Decided June 20, 1939.
1. Arbitration and Award
A common-law arbitration and award, attacked by the losing party thereunder, should not be set aside merely on allegations of the bill which are denied or justified by the answer of the party in whose favor the award was made.
2. Arbitration and Award
Where, in answer to a bill attacking an award, there are set forth matters which, if sustained by proof, would defeat the attack, it is error to hold the answer insufficient in that particular.
3. Arbitration and Award
Awards by arbitration are to be favorably and liberally construed and are not to be set aside unless they appear to be founded on grounds clearly illegal.
Appeal from Circuit Court, Monongalia County.
Suit by W. T. Hughes and others against the National Fuel Company to abrogate an arbitration award and obtain a decretal judgment against the defendant for an amount claimed on account of unmined coal. From a decree for the plaintiffs, the defendant appeals.
Reversed and remanded.
Kenna, Judge, dissenting.
Terence D. Stewart and Ezra E. Hamstead, for appellant.
William T. Hughes, Jr., and Geo. R. Farmer, for appellees.
Maxwell, Judge:
The plaintiffs, W. T. Hughes, Retta D. Hughes, Ernest H. Gilbert, Jr., Mary Gilbert, W. F. McKain, Hallie McKain, Alice Davis Trotter and James F. Trotter, instituted this
[121 W.Va. 393]
chancery suit in the circuit court of Monongalia County against National Fuel Company, a corporation, defendant, for the purpose of abrogating an arbitration award unfavorable to the plaintiffs and in favor of the defendant, and, notwithstanding the award, to obtain a decretal judgment in favor of the plaintiffs against the defendant for an amount claimed on account of unmined coal. From a decree granting the plaintiffs relief in conformity with the prayer of their bill, an appeal was awarded the defendant.
The background of the suit lies in a lease, for coal mining purposes, of a tract of 19.9 acres of Pittsburgh coal in Monongalia County, executed by the plaintiffs to the defendant in 1931. Under authorization of the lease, the defendant proceeded to mine the coal, but, in the course of the operations, the plaintiffs complained to the defendant that it was not taking the coal to a sufficient height. This coal seam is eight or nine feet in thickness, but the defendant, generally speaking, did not remove any coal above what is known in the record as the sixfoot binder which is a very thin stratum of slate extending longitudinally through the coal at a height of from six to six and one-half feet from the bottom of the seam. The plaintiffs assert that the defendant should have mined at least one more foot of top coal. The defendant claims that it took all of the top coal which was marketable and all that could properly be removed in accordance with safe mining methods.
The lease contains this paragraph: "Sixteenth: In the event of difference arising between the lessors and the lessee, under the terms of this agreement, or the construction of any clause thereof, or the rights and obligations of the lessors or the lessee hereunder, all such questions shall be determined by arbitration, but pending arbitration between the parties hereto, there shall be no cancellation or forfeiture of this agreement. In all such cases the matters in difference shall be referred to two arbitrators, one to be chosen by the lessors and one by the lessee, and if said arbitrators cannot agree, they shall
[121 W.Va. 394]
select a third, and the decision of any two of such three arbitrators shall be final and binding, and shall be accepted as such by the parties hereto."
After there arose the controversy whether the defendant had removed a sufficient quantity of the top coal, the parties, in compliance with the above quoted provision of the contract, after the defendant had ceased operations, submitted to arbitration the question of whether the defendant was obligated under the lease to mine and ship more coal from the premises than it had mined and shipped, and, if so, how much the defendant owed the plaintiffs for coal unmined and not paid for, and for which payment had been demanded by the plaintiffs. Thereupon, the plaintiffs selected as aribtrator S. Dunlap Brady, and the defendant selected C. W. McCutcheon. These two chose A. C. Beeson as the third arbitrator. The three conducted a hearing, following which Beeson and McCutcheon made a finding adverse to the claim of the plaintiffs. Soon after the award against the plaintiffs, they instituted this suit.
As disclosed by the bill, the bases of the attack on the award are (1) that arbitrator McCutcheon acted as an advocate, witness and agent for the defendant when the matter in controversy was being heard by the arbitrators; (2) that the award was not responsive to the questions submitted for arbitration; (3) that the award on its face discloses palpable error.
The defendant's answer and first amended answer, in their entirety, were held insufficient on demurrer. The second amended answer was held good with respect to parts thereof, but the paragraphs wherein the defendant...
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