BOARD OF ED., ETC. v. W. Harley Miller, Inc. ( 1975 )

Berry, Justice,

dissenting:

I respectfully dissent from the majority on the sole ground that, in my opinion, there is no language in the contract either expressed or implied that would make the procedure for arbitration a condition precedent to any right of action arising out of the contract. I agree that there is an exception to the common law rule relating to contract arbitration that if arbitration is made a condition precedent to any right of action the arbitration agreement cannot be revoked or rejected by the contracting parties. Pettus v. Olga Coal Co., 137 W. Va. 492, 72 S.E.2d 881 (1952); Lawson v. Williamson Coal and Coke Co., 61 W. Va. 669, 57 S.E. 258 (1907).

The majority relies on Pettus to bring the case at bar within the condition precedent rule. In that case, the contract for arbitration contained specific language which made all disputes between the parties to the contract subject to settlement exclusively by the provision for arbitration. Quite a different situation is presented by the agreement in the present case. The majority relies on the phrases “shall be decided by arbitration” and “shall be specifically enforceable” to support its conclusion that arbitration is a condition precedent to an action by implication from the terms of the contract between Miller and the Board of Education. Very similar if not identical words have been both expressly and tacitly held not to bring an arbitration clause within the condition precedent rule by implication. See, e.g., Hughes v. National Fuel Co., 121 W. Va. 392, 3 S.E.2d 621 (1939); Kohlsaat v. Main Island Creek Coal Co., 90 W. Va. 656, 112 S.E. 213 (1922); Flavelle v. Coal & Coke Co., 82 W. Va. 295, 96 S.E. 600 (1918); Turner v. Stewart, 51 W. Va. 493, 41 S.E. 924 (1902); Kinney v. B & O Emp. Rel. Ass’n., 35 W. Va. 385, 14 S.E. 8 (1891).

The result of this Court’s decision today is to permit the exception to swallow the rule. As a practical matter, common law principles relating to contract arbitration have been so emasculated as to render them inapplicable to the vast majority of situations. Because I believe that this Court is “sternly and unmistakably enjoined to leave drastic changes in the common law to the legislative branch of state government” by the mandate of Article VIII, Section 21 of our Constitution, Cunningham v. County Court, 148 W. Va. 303, 134 S.E.2d 725 (1964), I would affirm the judgment of the Circuit Court of Berkeley County.