Allen, Admx. v. Linger et als.

• Decision Date: 02 May 1916
• Citation: 78 W.Va. 277
• Court: West Virginia Supreme Court
• Parties: Allen, Admx. v. Linger et als.

78 W.Va. 277

Allen, Admx.

v.Linger et als.

Supreme Court of Appeals of West Virginia.

Submitted April 25, 1916.

Decided May 2, 1916.

1. Master and Servant Injuries to Servant Employment of Minor.

It is not negligence per se to employ a young man eighteen years of age, without the consent of his parents or guardian, to drive a team, and to go into the woods or forest where trees are being cut and felled, and to haul such logs and timber from the place or places where cut to a saw mill plant there operated by his employer. (p. 280).

2. Same Injuries to Servant Pleading.

A declaration charging defendant with having so employed plaintiff's intestate to so drive a team into the woods and forest where trees were being cut and felled, a place of danger, and to there hold and watch the same, and by reason whereof and without fault on his part he was injured and killed. by a falling tree, presents no case of actionable negligence on the part of the master. (p. 280).

3. Executors and Administrators Appointment Eligibility.

A married woman with the consent of her husband, such con sent being presumed from her appointment and qualification, is not, because of coverture, wholly disqualified to act as administratrix, and her appointment and qualification cannot be collaterally attacked in a suit brought in her fiduciary capacity for damages for the wrongful death of her decedent. (p. 281).

Error to Circuit Court, Doddridge County.

Action by Sabina A. Allen, administratrix, against N. D. Linger and others. Judgment for plaintiff, and defendants bring error.

Reversed, demurrer sustained, case remanded.

G. W. Farr, for plaintiffs in error.

J. V. Blair and P. M. Ireland, for defendant in error.

Miller, Judge:

This is an action on the case for the death of plaintiff's son, Russell G. Allen, an infant under twenty one years of age, by the alleged wrongful act of defendants, N. D. Linger, W. N. Satterfield and Cutlip, partners trading as Morgansville Lumber Company, and while employed by said firm in and about their saw mill and lumbering camp in Doddridge County, in the capacity of a teamster and in hauling logs and lumber to and from said mill. On the trial plaintiff obtained a verdict and judgment for eighteen hundred dollars, and defendants sued out of this court the present writ of error because of numerous alleged errors committed on the trial.

Many errors are assigned; some are without merit; others involve legal propositions so well settled by previous decisions that if it was proper on this hearing it would serve no good purpose to repeat them in another opinion. As we view the case we are limited on this hearing to the questions presented by the demurrer to the declaration, and to another question of practice, which, though not presented by the demurrer, goes to the right of the plaintiff as administratrix to maintain this suit.

Disposing of these points in the order of sequence presented, first, should defendants' demurrer to the declaration have been sustained? It consists of but one count. After the inducement it avers that among others employed by them in carrying on their said business defendants, without the knowledge or consent of his parents or guardian, employed said Russell G. Allen in and about their said business, and that on and a short time prior to May 11, 1914, put him to work and caused him to take charge of and drive a team of horses into the woods and forest and to haul logs and timber from the place or places where they were then engaged in cutting and felling trees, and causing trees to be cut and felled by their employees, and where they knew trees were being cut and felled by other persons; and that defendants well knowing that there was great risk and danger in being in said woods and forest, and in handling and driving said team of horses, nevertheless requested, directed, and ordered said decedent, then and there being a youth of tender years and without experience and skill and on that account ignorant of and unable to appreciate the great risk and danger thereof, to stay with and to watch and hold said horses.

And by way of averring duty and negligence on their part, it is further alleged that it was then and there the duty of defendants to use due and proper care and caution that plaintiff's said intestate should be provided with a safe place in which to do and perform his said labors, so that he might be safe and secure in all respects in his said employment and labor against which ordinary care could avail while so engaged, which defendants then and there wholly neglected to do, but on the contrary negligently requested, directed, ordered and caused him, the said Russell G. Allen to go and to take and drive said team of horses into said woods and forest, a place of danger, and to then and there hold, ccntrol, and watch the same, when and where said forest trees were being so cut and felled by the defendants, their servants, employees, and others, as was then well known to defendants, and that while so employed said decedent, without any fault or neglect on his...