Johnson v. Junior Pocahontas Coal Co., Inc.

Citation160 W.Va. 261,234 S.E.2d 309
Decision Date29 March 1977
Docket NumberNo. 13686,13686
PartiesLonnie JOHNSON and Hattie S. Johnson v. JUNIOR POCAHONTAS COAL CO., INC.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Syllabus, point 6, Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. While exculpatory clauses in instruments involving coal and coal mining estates and interests in land may conceivably insulate a defendant's coal mining operations on the land from some tort liabilities claimed on account of damages to a plaintiff's nearby surface land residence property, such clauses may not be raised as a complete shield from all liabilities which may be legally attributable to the defendant's coal mining operations and the development of a record thereon, by jury trial proceedings or otherwise, may be necessary to make a determination of defendant's liability, if any.

3. An independent contractor, strip mining and removing coal at a production cost per ton pursuant to an agreement with the lessee of the leasehold estate embracing coal and mining rights, has privity of contract with the lessee but not privity of estate with the owner and lessee of the coal lands. Exculpatory clauses in deeds and leases relating to the coal lands do not insulate the independent contractor from tort liability to nearby residents whose complaint charges their property has been damaged by the independent contractor's negligence and wilful and wanton conduct in its strip mining, drilling and blasting operations.

4. Plaintiffs in a tort claim for property damages attributable to more than one offending party may elect to commence their action against one party considered by plaintiffs to be directly responsible and legally liable for the tort committed.

5. "If a genuine issue as to a material fact is raised in any action, a summary judgment under the provisions of Rule 56, R.C.P., can not be granted." Syllabus, point 3, Oakes v. Monongahela Power Co., W.Va., 207 S.E.2d 191 (1974).

Camper & Watson, Wade T. Watson, Harry G. Camper, Jr., Welch, for appellants.

Tutwiler, Crockett & LaCaria, Charles A. Tutwiler, Welch, for appellee.

McGRAW, Justice:

By judgment order of March 10, 1975, the Circuit Court of McDowell County sustained defendant's motion for summary judgment and dismissed plaintiffs' action. By order of March 26, 1975, the trial court overruled plaintiffs' motion to set aside or to amend or alter the court's judgment order of March 10, 1975, sustaining defendant's motion for summary judgment, and again ordered dismissal of plaintiffs' action. The action is before this Court on plaintiffs' appeal from the judgments of the trial court.

Plaintiffs, Lonnie Johnson and Hattie S. Johnson, husband and wife, commenced their action against defendant, Junior Pocahontas Coal Co., Inc., for recovery of actual, punitive and treble damages claimed to have resulted to their residence property at Berwind, McDowell County, as a result of defendant's surface mining, drilling and blasting operations near their home. Defendant's motion for summary judgment was based on exceptions and reservations contained in the deed whereby plaintiffs acquired their residence property exceptions and reservations allowing and permitting mining operations on and about plaintiffs' property "without liability for damage and injury to and destruction of the surface thereof or to anything now or hereafter therein and thereon, including but not limited to buildings, structures and improvements, growing things, pipes, lines and ways, wells, springs and water courses."

In sustaining defendant's motion for summary judgment, the trial court found that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), R.C.P. Counsel for defendant contend (1) that the exculpatory clauses in the deeds in the chain of title to plaintiffs' real property are enforceable by defendant and (2) that there is no dispute as to any material fact, and conclude that the trial court's judgment granting defendant's motion for summary judgment is to be affirmed.

Counsel for plaintiffs contend that three issues are involved: (1) whether plaintiffs are barred from maintaining their action for damages because of exculpatory clauses, regardless of defendant's negligence in its mining operations; (2) whether the exculpatory clauses are void, unenforceable and invalid; and (3) whether genuine issues of material fact exist for resolution at a trial of the action.

By deed of June 1, 1956, New River and Pocahontas Consolidated Coal Company, owner of coal lands in McDowell County, conveyed thirteen parcels of surface lands in the town of Berwind to Paul W. Jones, Trustee, excepting and reserving the coal and the mining rights therein and thereunder. By deed of August 15, 1956, Paul W. Jones, Trustee, conveyed a parcel of surface land to plaintiffs in this action, subject to the "conditions, exceptions, reservations and limitations as contained in all prior deeds conveying the said real estate same as though they were set out herein in extenso." By agreement of lease, dated August 18, 1961, New River and Pocahontas Consolidated Coal Company, as lessor, leased to Consolidation Coal Company, as lessee, many tracts of coal lands, including tracts in and near the town of Berwind, McDowell County, providing, among other covenants and conditions, that lessee "shall conduct its mining operations as not to violate any rights of lateral and subjacent support belonging to the owners of other estates." By agreement of September 1, 1961, the lessee, Consolidation Coal Company, entered into arrangements with Junior Pocahontas Coal Company, defendant in this action, whereby Junior Pocahontas Coal Company, as an independent contractor, would strip mine certain seams and areas of coal in and underlying the leased lands and deliver the coal to Consolidation Coal Company at a production cost of $4.15 per ton. Plaintiffs' complaint alleges that the defendant Junior Pocahontas Coal Company, while engaged "in the business of coal mining, including strip mining and doing all acts necessary to the operation of said business, including drilling, blasting and the moving of earth, rock and debris", did, "in a negligent, careless and reckless manner", damage the residence property of plaintiffs and others in the area. Paragraph (8) of plaintiffs' complaint alleges:

"As a direct and proximate result of the surface mining, drilling and blasting operations by the defendant company, and/or its negligent acts and failures to act in carrying on its surface mining, drilling and blasting operations, as aforesaid, and/or its wilful and wanton conduct in reckless disregard of the rights of others, including the plaintiffs, as aforesaid, plaintiffs' real estate, house and other improvements thereon were greatly injured and damaged, including cracks, buckling and damages into and about its foundation, walls, ceilings, floors and windows of the dwelling house, walks and walls adjacent or near thereto, by reason of which injury and damages many portions of plaintiffs' premises will have to be repaired, rebuilt or restored to the extent possible, and by reason of which acts and conduct of the defendant, the plaintiffs' use and enjoyment of said property has and will in the future be greatly interfered with, and the plaintiffs' premises and property has been caused to greatly depreciate in value all to the damage of the plaintiffs in the actual sum of, to-wit, $10,000.00."

In the concluding paragraph of their complaint, plaintiffs ask for actual and compensatory, punitive and treble damages in the following language:

"WHEREFORE, the plaintiffs, Lonnie Johnson and Hattie S. Johnson, demand judgment against the defendant company, Junior Pocahontas Coal Company, Inc., for actual and compensatory damages in the sum of $10,000.00; and/or said plaintiffs demand judgment against said defendant in the sum of $5,000.00 for punitive damages; and/or said plaintiffs demand judgment against said defendant in the sum of $35,000.00 as provided by Chapter 20, Article 6, Section 30 of the Code of West Virginia, as amended, and their costs in this proceeding."

Defendant, in its answer, denies conducting its mining operations "in a negligent, careless and reckless manner", denies that "it used excessive amounts of explosives" in the blasting charges, and affirms that it used care in its operations and followed provisions of rules, regulations and laws relating to strip mining. Further, as an affirmative defense, defendant asserts that the exceptions and reservations contained in the deed of June 1, 1956, made by New River and Pocahontas Consolidated Coal Company to Paul W. Jones, Trustee, through which plaintiffs acquired their surface land residence property, insulate defendant from liability for any damages to plaintiffs' property. In defendant's brief, counsel contend:

"It is the contention of the defendant in these cases that by reason of the specific language contained in the deed from New River to Jones, Trustee, the defendant, conducting its strip-mining operations by virtue of the contract with Consolidation Coal Company, it being the Lessee of New River, that it is not liable for damage, if any, to the improvements and/or the surface of the various lands, in that the plaintiffs are bound by the conditions, etc., contained in the deed from New River to Jones, Trustee.

"It is noted that the deed from Jones, Trustee, to the various plaintiffs, conveys the surface only, setting out that it is a part of the property conveyed to Jones, Trustee, by New River and specifically making said deed subject to the conditions,...

To continue reading

Request your trial
13 cases
  • Crump v. Beckley Newspapers, Inc.
    • United States
    • West Virginia Supreme Court
    • November 10, 1983
    ...such motions as a method for disposition of cases where genuine issues of material fact remain, Syl.Pt. 6, Johnson v. Junior Pocahontas Coal Co., Inc., 160 W.Va. 261, 234 S.E.2d 309 (1977), or where different inferences can be drawn from facts that are accepted as true, Aetna Casualty and S......
  • Mandolidis v. Elkins Industries, Inc.
    • United States
    • West Virginia Supreme Court
    • June 27, 1978
    ...of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Johnson v. Junior Pocahontas Coal Co., W.Va., 234 S.E.2d 309, 315 (1977), Quoting, syllabus point 6 of Aetna Casualty & Surety Company v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.......
  • Masinter v. WEBCO Co.
    • United States
    • West Virginia Supreme Court
    • January 29, 1980
    ...be construed in a light most favorable to the losing party. Gavitt v. Swiger, W.Va., 248 S.E.2d 849 (1978); Johnson v. Junior Pocahontas Coal Co., W.Va., 234 S.E.2d 309 (1977); Oakes v. Monongahela Power Co., W.Va., 207 S.E.2d 191 (1974); Hines v. Hoover, 156 W.Va. 242, 192 S.E.2d 485 (1972......
  • Perrine v. E.I. Du Pont De Nemours And Co.
    • United States
    • West Virginia Supreme Court
    • March 26, 2010
    ...by job applicant allowing prospective employer to obtain employment information from prior employer); Johnson v. Junior Pocahontas Coal Co., Inc., 160 W.Va. 261, 234 S.E.2d 309 (1977) (involving pre-injury exceptions and reservations contained in deed whereby plaintiffs acquired their prope......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT