Anderson v. Watson

• Decision Date: 21 June 1922
• Docket Number: 17.
• Parties: ANDERSON et al. v. WATSON et al.
• Court: Maryland Court of Appeals

118 A. 569

141 Md. 217

ANDERSON et al. v. WATSON et al.

No. 17.

Court of Appeals of Maryland

June 21, 1922

Appeal from Circuit Court, Allegany County, in Equity; Albert A Doub, Judge.

"To be officially reported."

Action by Roy Anderson and others against Hugh Watson and others. From a judgment of dismissal, complainants appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

John M Henry, of Pittsburg, Pa., and Charles T. Clayton, of Washington, D. C. (J. Philip Roman and Fuller Barnard, both of Cumberland, on the brief), for appellants.

W. Ainsworth Parker, of Baltimore, and A. Taylor Smith, of Cumberland, for appellee.

OFFUTT J.

The appellants in this case are coal miners who have severally at various times, between October, 1902, and October, 1917, been employed by the Consolidation Coal Company in its coal mine No. 3 at Hoffman, Allegany County, Md., in cutting, mining, and loading coal. For their labor each miner was paid according to the quantity of coal mined by him, which was ascertained by weighing the cars containing the coal so mined, which was loaded into them as it was mined, on scales operated by the Consolidation Coal Company. The complainants allege that the scales so operated by the coal company were inaccurate, and that as a result of their inaccuracy they were credited with and paid for less coal than they actually mined. That condition they say existed continuously between the dates to which we have referred, and they further say that the Consolidation Coal Company has in its possession records showing the quantity of coal mined by each of the complainants, and that the information contained in these records, which is essential to the ascertainment of the loss suffered by each of the complainants as a result of the inaccurate scales, cannot be obtained by them from any other source. They therefore demanded of the coal company that it discover the information contained in said records, showing the amount of coal respectively mined by each of the complainants, and that it account to each of them for the compensation withheld from them and retained by the company, being the sum due them for the difference between the amount of coal credited to them in accordance with the registration of the inaccurate scales and the amount of coal actually mined by them, and they accordingly filed, in the circuit court for Allegany county, a bill of complaint against the Consolidation Coal Company, certain employees and former employees of that company, and certain other miners who were employed at the mine during the period referred to and who were all affected in the same way by the error complained of by the appellants asking for such discovery and accounting and who have the same interests in the object of the suit.

A demurrer to that bill of complaint was interposed and sustained, and an amended bill of complaint filed to which certain of the defendants also demurred, and that demurrer was likewise sustained, and the complainants having indicated that they did not desire to make further amendments, the bill of complaint was dismissed, and from that decree this appeal was taken.

In the amended bill of complaint, which is the only one which we are required to consider, it is alleged: That the plaintiffs are residents of Allegany county, and bring the suit on behalf of all others having a common interest with them in its object. That certain of the defendants are sued as employees and former employees, weighmasters, and servants of the defendant. That other defendants are sued as parties having an interest in the object of the suit who have declined to join with them as parties plaintiff; and that the Consolidation Coal Company is a corporation incorporated under the laws of Maryland.

That the plaintiffs have respectively been employed as miners at various times and for varying periods between the 1st day of October, A. D. 1902, and the 9th day of October, A. D. 1917, by the Consolidation Coal Company, to which, for convenience, we will hereafter refer as the coal company, at its mine No. 3 at Hoffman, in cutting, mining, and loading coal upon mining cars, and that the coal so mined was delivered by the coal company over its own mining tracks in its mining cars to and weighed upon its own mine scales, and "that thereafter such coal was dumped from such cars into railroad cars for shipment by rail to purchasers of such coal, or in wagons for delivery to local purchasers of such coal; and records of the purchasers of such coal, and of the weight of coal sold and delivered to them, to which records the plaintiffs have not, nor have had access, were solely kept by the defendant company." That such work was performed entirely within the mine at a considerable distance from its principal entrance, in most cases extending a mile or more, and that the coal company required all miners employed in the mine on each working day to go directly to the place of labor assigned them and remain there during their respective periods of labor.

That, as the plaintiffs respectively loaded the mine cars, they attached thereto a "check" as a claim for credit from said employer for compensation for services rendered by them in mining, cutting, and loading the coal on such car, which compensation was based upon the weight of the coal thus loaded; and that thereafter the company removed said cars from the place of loading out of the mine and over the platform of certain mine scales where they were weighed by one of the coal company's weighmasters, who in each case, as he weighed the car, detached from it the miner's check and, upon a sheet provided by the defendant company, entered the serial number of the car and the weight of the coal found therein as shown by the scales to the credit of the name or check number of the miner, who had loaded the same within said mine, and that when these cars were removed from the mine the miner who had loaded them had no further opportunity of seeing them or of knowing whether or not the weight credited to the miner, whose check was attached to the bar being weighed, was correct.

That the record made by the weighmaster, showing the amount of coal credited to each of the plaintiffs and the serial number of the mine car in which such coal had been delivered to the scales, was transmitted to the office of the defendant company and a memorandum thereof posted in the weighing house, but no copy given to any of the miners; and that from such record the coal company computed and reported to the miners the weight of coal credited to them for the period covered by the report, and the earnings computed thereon and paid them from time to time at the several rates from time to time agreed upon between them, and that that report and payment constituted all the accounting, notice, or information furnished or available to such miners.

That the scales on which the cars of coal were weighed were provided with a large platform upon which was laid a short length of track over which the loaded mine cars passed. That such scales were kept in very bad adjustment and condition by the coal company, so that the ratio of balance of the scales became altered from the established ratio of design of said scales, and the counterpoise weights designed for use upon the scales became erroneous, so that they falsified the balance of such scales in such a way that they indicated 111 pounds less than the actual and true weight of coal loaded upon and weighed within each car, and that, in balancing the said scales each day, the coal company's weighmasters removed from its place upon the balance beam of said scales the counterpoise hanger and after balancing the remaining parts of said scales restored it to its place and used it while coal was being loaded, thereby causing the scales to weigh each mine carload of coal 620 pounds less than its actual weight, the counterpoise hanger preventing the weight of coal to the amount of 620 pounds from appearing in the operation of weighing coal upon said scales.

That the plaintiffs had no means of verifying or disproving the correctness of the scales, or the operation of the same, and were informed upon application to the state mine inspector, whose duty it was to test said scales, that he had officially tested the scales and had found no error in them, and that the plaintiff had no means of ascertaining such weights or of keeping accounts thereof for themselves and trusted to the fairness of their employer, and accepted the accounts furnished them as correctly stating the weight and compensation to which they were entitled. That in such reliance, having no opportunity to procure complete data, they kept no record for themselves of the number of mine cars loaded by themselves respectively, and they had no information or notice at any time which showed them that the scales were incorrect or had been tampered with, until August 21, 1917. That at that time the United States Bureau of Standards examined the mine scales and the conditions of weighing and accounting for coal at such mine and, on October 9, 1917, the said Bureau made a second examination of the scales and discovered, as a result of these examinations, the improper balancing of the scales and the use of incorrect weights to which we have referred, and that as a result the coal company was indicted for unlawfully neglecting to provide accurate scales upon which to weigh coal at said mine, on the 21st day of August, 1917, to which indictment it pleaded guilty.

The bill then alleges:

"That since this fraudulent balancing of the scales and fraudulent use and employment of false weights by said defendant company, described in paragraphs 8 and 9 hereof became known to them as

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