Collins v. Dravo Contracting Co.
| Citation | 171 S.E. 757,114 W.Va. 229 |
| Decision Date | 17 October 1933 |
| Docket Number | 7639. |
| Parties | COLLINS v. DRAVO CONTRACTING CO. |
| Court | Supreme Court of West Virginia |
Submitted September 12, 1933.
Rehearing Denied Dec. 12, 1933.
Syllabus by the Court.
Where declaration in one count seeks recovery for servant's death on theory of master's common-law negligence, and on theory of master's deliberate intent to produce death declaration is duplicitous but not repugnant, hence plea of compliance with compensation act is not defense to second theory, and judgment for master based on verdict only deciding issue regarding compliance with compensation act will be vacated, in absence of election (Code 1931, 23-1-1 et seq.; 23-4-2).
Duplicitous pleading cannot be taken advantage of by general demurrer remedy being to require election.
Administratrix could maintain action to recover for servant's death in consequence of master's deliberate intent to produce death (Code 1931, 23-4-2, 55-7-6).
Where a declaration in one count alleges noncompliance with the Workmen's Compensation Act and sets up a theory of recovery for death by wrongful act on the basis of common-law negligence of a master toward a servant and also a theory of recovery for death in consequence of the deliberate intent of the master to produce the injury or death of his servant under Code 23-4-2, the two theories relied upon render the declaration duplicitous but not repugnant, and a plea thereto setting up full compliance with the Workmen's compensation Act on the part of the master is not a defense to that part of the declaration alleging deliberate intention on the part of the master to produce the injury or death of his servant and the death of the servant in consequence of acts done or things permitted with such intent. A judgment based upon a verdict deciding the issue raised by such a plea alone, in the absence of an election by the plaintiff to so proceed, will be set aside.
Error to Circuit Court, Kanawha County.
Action by Orpha Collins, administratrix of the estate of James Collins, deceased, against the Dravo Contracting Company. Judgment for defendant, and plaintiff brings error.
Judgment reversed and cause remanded with directions.
J Thos. Ward, of South Bend, Ind., A. M. Belcher, of Charleston, and Herbert Stansbury, of Beckley, for plaintiff in error.
Koontz Hurlbutt & Revercomb, of Charleston, for defendant in error.
Orpha Collins, administratrix of the estate of James Collins, deceased, brought an action for wrongful death of her decedent against Dravo Contracting Company in the circuit court of Kanawha county. The action was properly matured, and on February 18, 1933, an amended declaration in one count was filed. For the purposes of this writ of error, the original declaration has been abandoned. The amended declaration alleges that on the 23d day of April, 1932, the defendant was engaged in the construction of certain locks in the Kanawha river at or near Marmet, and that in that work it employed James Collins as a workman in an excavation under an overhanging bank; that it was the duty of the said defendant to use due and proper care to provide him with a reasonably safe place to work; to provide proper equipment and appliances; that the defendant wholly disregarded the performance of such duties, and "caused the said plaintiff's decedent unlawfully, wilfully, deliberately, and with deliberate intent, and wrongfully and negligently to work in an unsafe place where his life was endangered, and with deliberate intent, to injure or kill him, all of which was known to the defendant and those acting for the defendant," etc., in this to wit: "The bank where the excavation was being made had broken, all of which the defendant well knew and understood, and the probability of caving in and destroying the life of the plaintiff's decedent was expected and well understood by the said defendant and those engaged in its service and responsible for the construction aforesaid; that many times prior to the caving in of the bank which caused the death of plaintiff's decedent, the said bank had caved in causing great quantities of earth to slide or fall into the place where plaintiff's decedent was ordered to, or required to work; that the danger of the bank again sliding, or the danger of it momentarily sliding or caving in was so apparent that the said defendant, at all times, had notice and was charged with notice that the place where plaintiff's decedent was required to work was nothing more or less than a death-trap; that the condition of the said bank above where the plaintiff's decedent was working was such as to cause, and it was the duty of the defendant to cause, the said bank to be protected or properly sloped so as to prevent its slipping down or falling upon the plaintiff's decedent; yet, disregarding all of the defendant's duties so owed by the defendant to the plaintiff's decedent, as aforesaid, the said defendant, wholly, wilfully, deliberately, wrongfully and negligently, failed and with deliberate intent to injure or kill him, refused so to do, and by virtue of such wholly, wilful, wrongful, deliberate, and unlawful negligence, the said bank caved in and by result of such caving of such bank, the plaintiff's decedent was entombed, and because of same, died by reason thereof, in the County and State aforesaid." The declaration further alleges that the defendant elected to comply with the requirements of the Workmen's Compensation Act (Code 1931, 23-1-1 et seq.), paid the premiums, but failed to post and keep posted the notices prescribed by that act.
To this declaration, the defendant filed special plea No. 1, setting forth an election under, and a detailed compliance with, the Workmen's Compensation Act, including notice to plaintiff's decedent of that election and compliance. In addition, defendant filed its special plea No. 2, alleging that the plaintiff had applied for and been awarded compensation under the Workmen's Compensation Act by reason of the injury complained of in her declaration, and had received and accepted all compensation paid, and therefore that the right in the declaration alleged could not be maintained.
Plaintiff moved to strike out both of the defendant's special pleas (Quære: Since the enactment of Code, 56-4-36 can the sufficiency of pleas be tested in this manner?) on the ground that, under the declaration, the plaintiff would be entitled to recover, whether or not the allegations of the special pleas were established, and, upon the court overruling the motion, proceeded to file her replication alleging the failure of the defendant to give notice under the Workmen's Compensation Act of its election to pay premiums and subscribe thereto prior to the injury to plaintiff's decedent. The issue thus raised was submitted to a jury, and, after all of the evidence of the defendant in support of its special pleas had been offered, plaintiff moved to strike out the evidence offered by the defendant and, upon this motion being overruled, the case went...
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