Angel v. Black Band Consol. Coal Co.

• Decision Date: 18 March 1924
• Citation: 96 W.Va. 47
• Court: West Virginia Supreme Court
• Parties: Watt Angel v. Black Band Consolidated Coal Co.

96 W.Va. 47

Watt Angel

v.Black Band Consolidated Coal Co.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 1924.

Decided.

March 18, 1924.

1. Landlord and Tenant. "Estate at Will" Defined.

An estate at will in lands is that which a tenant has by an entry made thereon under a demise tc hold during the joint wills of-the parties, (p. 53).

2. 'Same. Right to Occupy Premises Leased to Miner by Coal

Company Held to Cease When Services Terminated.

A coal mining company owns a number of dwelling houses for the use of those employed in and about its mines; they form a part of its plant and are necessary to the successful conduct of its business. They are rented to its miners at a nominal charge, hardly sufficient to cover repairs and insurance. The rent or charge is calculated at so much per month, but it is paid every two weeks by deductions from the miners' wages as they are earned. Miners are not required to live in the houses and those who do not are paid the same wages as those who do, all being paid at so much per ton. The houses are not kept for rent generally, but are occupied only by the company's employees, and then only by its consent. Under these conditions a miner is employed, is furnished a house, he moves in, continues his employment for a number of years, and the deductions for rent are regularly made from his wages every two weeks; he then voluntarily quits work and pays no rent thereafter. There being no agreement that he should occupy the house for any definite period, when he ceased work for the company his right to occupy the house also ceased, (p. 55).

Same. Relationships Between Miner and Employer as Landlord and Tenant and Employer and Employee Held Not Necessarily Inconsistent.

The miner was an employee in respect to his mining coal, but a tenant as respects his occupancy of the house, the two relations of employer and employee and landlord and tenant not being necessarily inconsistent with each other. (p. 56).

Same. Tenant Held Tenant at Will.

The contract being terminable at the will of either party, the miner had only an estate at will in the house and occupied it as a, tenant at will. (p. 56).

Same. Landlord May Re-enter and Remove Goods of Tenant at Will Without Legal Process, Where it Was Done Without Violence or Breach of the Peace.

Where he held over for a period of six months or more after he quit work, it may be inferred that his holding over was with the landlord's consent, thus creating a new tenancy at will; and upon refusing to vacate and remove his goods from the premises after notice to do so, he thereafter became a trespasser and his landlord had a right to re-enter and remove his goods, without legal process, where it was done without violence or breach of the peace. (p. 56).

Same Landlord Held Not Liable for Damages to Removed Goods.

Where the company removed his goods to the open, covered them with tarpaulins, and they remained there for four days and nights, without any care of them on the part of the owner although he was present and knew their condition, the company is not liable for damage done thereto by frosts, (p. 56).

7. Insufficiency of Evidence.

A verdict which clearly has not sufficient evidence to support it should be set aside. (p. 56).

Error to Circuit Court, Kanawha County.

Action by Watt Angel against the Black Band Consolidated Coal Company. Judgment for plaintiff, and defendant brings error.

Reversed and Remanded. S. B. Avis, for plaintiff in error.

Stewart & Whitt and Howard Hundley, for defendant in error.

Meredith, President:

Plaintiff recovered judgment for $300 in an action of trespass on the case for damages alleged to have been done by the company's employees in evicting plaintiff and removing his house-hold goods and effects from one of its houses. Defendant assigns error.

Defendant operates a coal mining plant at Olcott, Kanawha County. It owns and maintains there about ninety dwelling houses for the exclusive use of its employees. It does not rent them to nor permit them to be occupied by any one who is not an employee of the company. But its employees are not compelled to live in its houses to secure employment in its mines. At the time of the injury complained of the company employed about 155 men, about half of which number lived in company houses, and the remainder lived in homes of their own or homes rented from persons other than the defendant. It is claimed by the defendant that it is absolutely necessary that it own these houses in order to enable it to carry on its business; this is probably true, its mining operations could probably not be carried on without them.

The plaintiff is a coal miner, and had been employed by the company for about six years and had lived in the house from which he was ejected about three years. He was employed at mining coal, for which he received so much per ton. He received the same rate per ton that was paid those miners who mined coal there but who did not live in the company houses; so that the rate of pay per ton in no wise depended upon whether the miner did or did not live in a company house. At the time plaintiff was employed, he was furnished a house by defendant, and for its use there was deducted from his wages as they were earned $3.00 every two weeks; there was also deducted at the same time 50 cents for electric current for lighting purposes. The houses were not owned and maintained by the company to be rented at a profit; the cost of repairs and insurance exceeded the deductions from the wages of those who occupied them.

On March 15, 1922, plaintiff voluntarily quit work and about April 1st with a number of other employees went on strike and refused thereafter to work for the company upon the terms offered. From the time he quit work no more wages accrued; thereafter he neither paid nor offered to pay rent, though he continued to occupy the house until he was evicted on October 26, 1922, a period of more than six months. Defendant notified plaintiff on October 1st to vacate; it contends that he then agreed to do so, but this is denied by him, though he admits that he received such notice. On October 20th defendant gave him a written notice to vacate on or before October 26th, stating that the company wished "to take possession on that date''; refusing to vacate, on the 26th the defendant evicted him, placing his house-hold goods out in the open about fifty feet distant from the dwelling house, where it covered them with tarpaulins, and placed a guard over them. They remained there four days until plaintiff found a place of storage. Plaintiff claims that his property was damaged by improper handling and by the night frosts.

There are but two main questions arising on the record: (1) the character of the relation between the company and the plaintiff, that is, whether it was that of landlord and tenant, and if so for what period, or employer and employee; and (2) whether the verdict is excessive.

Plaintiff claims he was a tenant from month to month, and therefore was entitled to a month's notice of the termination of his tenancy before he conld be lawfully evicted; it is conceded that no such notice was given. On the other hand, the defendant claims that plaintiff was only an employee, both as respects his services as a miner and. also as respects his occupancy of the house; that when he ceased work on March 15th, his right to occupy the house ceased, he became a trespasser and could be lawfully evicted by the company without legal process. There is no proof of any special contract of lease between plaintiff and defendant. He was employed to work, was assigned a house, moved in, and the deductions from his wages were made as heretofore stated. Other houses of the company were furnished at higher rates, because they were better or larger. While the plaintiff says his lease was from month to month, that is a mere legal conclusion and we must look to the facts to determine the nature of the tenancy, if it be a tenancy. The houses were built by the company solely for the use of its employees at its mines. They form a material and necessary part of its plant and equipment. When those who lived in company houses went on strike, the company had to rent other houses for other miners who were engaged to mine coal; hence its counsel urges that the plaintiff's occupancy of its house was subsidiary and necessary to its service; or if not necessary, it was incidental or convenient to the service or so connected therewith as to render his occupancy that of a mere employee or servant, and not that of a tenant. A great number of authorities are cited for this proposition.

For example, in Lane v. Au Sable Electric Co., 181 Mich. 26, 147 N. W. 546, Ann, Cas. 1916-C, 1108, plaintiff was employed to operate a station house at a monthly wage, and was furnished as part of his compensation a dwelling house valued at from $5.00 to $10.00 per month; he quit work, whereupon the company removed his furniture. In an action for the eviction the court held that plaintiff was an employee and not a tenant; that when he quit work his right to occupy the house ceased. The opinion quotes with approval from Bowman v. Bradley, 151 Pa. St. 351, 24 A;tl. 1062, 17 L. R. A. 213: "It is

not necessary that the occupation of a house or apartments should be a necessary incident to the service to be performed in order that the right to continue in possession should end with the service. It is enough if such occupation is convenient for the purposes of the service and was\ obtained by reason of the contract of hiring. (Italics ours).

Another well considered case and one which illustrates the importance of correctly determining the relation of the parties is that of Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158. Kerrains was convicted of assault with a deadly weapon with intent to kill. He had been employed in operating a paper mill and was paid a daily wage, and furnished a house and garden. They disagreed, his employer...