Brewer v. Appalachian Constructors, Inc.

• Decision Date: 10 July 1953
• Docket Number: No. 10509,10509
• Citation: 76 S.E.2d 916,138 W.Va. 437
• Court: West Virginia Supreme Court
• Parties: BREWER, v. APPALACHIAN CONSTRUCTORS, Inc., et al.

Page 916

76 S.E.2d 916

138 W.Va. 437

BREWER, v. APPALACHIAN CONSTRUCTORS, Inc., et al.

No. 10509.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1953.

Decided June 16, 1953.

Concurring Opinion July 10, 1953.

Syllabus by the Court.

1. Although the liability for a tort under a verdict against two or more joint tort- feasors is joint and several, judgment should be rendered on the verdict.

2. In an action at law against joint tort-feasors a verdict of a jury allocating the total amount of the verdict between or among joint tort-feasors is defective, and should be rejected by the trial court.

3. Where the jury returns a verdict which is so defective that a proper judgment cannot be rendered thereon, it is the duty of the trial court under proper instructions to require the jury to retire for the purpose of returning a proper verdict.

4. Where a jury returns a verdict against joint tort-feasors, in which one of the defendants is designated in the verdict 'as agent of', one of the other defendants, and in which the jury finds that one of the defendants 'is responsible for' another of the defendants, and one of the defendants 'is responsible for' another of the defendants in the amount found by the jury, though ineptly drawn, serves to base a joint judgment against all of the defendants. The qualifying words are to be regarded as mere surplusage.

5. Unnecessary matter appearing in the verdict of a jury, which does not vitiate such verdict, should be treated by the trial court as surplusage.

6. 'The test of the relation between one having work done and the workman consists in the employer's right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that of employer and independent contractor.' Syl., Greaser v. Appaline Oil Co., 109 W.Va. 396, 155 S.E. 170.

7. The test of the relationship of master and servant is the right to control the alleged servant's activities, and not the exercise of control.

8. Agency by representation or estoppel, sometimes designated as 'apparent agency', involves a case in which there may be no agency in fact, but where the principal or employer holds out or represents a person to be his agent or employee, and a third party or parties rely thereon, in which case the person making the representation is estopped to deny the agency.

9. 'Generally, if one let work, lawful within itself, to a contractor and retain no control over the manner of its performance, he is not liable on account of negligence of the contractor or his servants. But, if the work is intrinsically dangerous, or is of such character that injury to third persons, or to their property, might reasonably be expected to result directly from its performance, if reasonable care should be omitted, the employer is not relieved from liability by delegating the performance of the work to an independent contractor.' Pt. 1 Syl., Walton v. Cherokee Colliery Co., 70 W.Va. 48, 73 S.E. 63.

10. A person who sells to an independent contractor gasoline for resale is not liable for the negligence of the independent contractor in the handling of the gasoline.

11. This Court will set aside a jury verdict as excessive which is so high that it plainly appears to have resulted from mistake, partiality, passion, prejudice or lack of due consideration.

Jesse M. Jaco, Morgantown, for American Oil Co.

Furbee & Hardesty, Fairmont, for Appalachian Constructors, Inc. and Victor Zeni.

Minter L. Wilson, Morgantown, Russell L. Furbee, C. H. Hardesty, Jr., Fairmont, and John Crynock, Morgantown, for Dale Mayfield.

Albert M. Morgan, Morgantown, for defendant in error.

RILEY, Judge.

This is an action of trespass on the case instituted in the Circuit Court of Monongalia County by John D. Brewer against Appalachian Constructors, Inc., a corporation, Victor Zeni, American Oil Company, a corporation, and Dale Mayfield, to recover damages for personal injuries received as the result of an explosion occurring at Brock Mine of Christopher Coal Company in Monongalia County on December 29, 1949. To a judgment in the amount of $93,800, based on a verdict in favor of plaintiff, the several defendants prosecute this writ of error.

Appalachian Constructors, Inc., hereinafter referred to as 'Appalachian', with Victor Zeni as its president and general manager, was engaged in the work of sinking an air shaft at Brock Mine of Christopher Coal Company in Monongalia County. The American Oil Company, hereinafter referred to as 'American', and Mayfield, owner and operator of a tank wagon, were engaged in the business of selling gasoline. While the declaration charges that Mayfield was the agent of American, in the trial American took the position that Mayfield was, in fact, an independent contractor.

American and Mayfield entered into a written agreement, dated October 7, 1949, in which Mayfield is referred to as 'Buyer', whereby American agreed to sell and deliver to Mayfield, and Mayfield agreed to purchase from American, Mayfield's requirements, for resale by Mayfield for his account and net for the account of American, all American's brands of gasoline, kerosene, and fuel oil, upon certain terms and conditions set forth in the written agreement. This agreement provides, among other things, in Paragraph 5 that Mayfield will assume and pay to American all taxes, duties and other charges with respect to the manufacture, sale, delivery or use of said products, which American may be required to pay or collect under any municipal, state or federal law now in effect, or hereafter enacted; and that the Buyer will pay to American all such taxes, duties and other charges at the time of payment for the products supplied by American, the amount of which shall be added to the invoices therefor.

For the purposes of this decision it is unnecessary to make further reference to the provisions of the agreement, except that the agreement does not expressly or impliedly give to American the right to control Mayfield's activities in the resale of American's products.

This contract contemplated that in the resale of American's products by Mayfield, Mayfield would use his own tank wagon, which contained three compartments, one with a capacity of 242 gallons, and the other two, 313 and 145 gallons, respectively.

Originally in this action Christopher Coal Company was impleaded as a party defendant with the defendants who are prosecuting their respective writs of error. Upon certificate had to this Court on the demurrers to plaintiff's declaration, this Court overruled the demurrers as to all defendants, except Christopher Coal Company and its employee, Guy Hinerman, dismissing them as parties defendant. Christopher Coal Company was engaged in the business of mining coal in Monongalia County. Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87.

Plaintiff was severely injured about two o'clock in the afternoon of December 29, 1949, by an explosion which occurred in a house, designated in the record as the 'sand house', a buildings approximately 16 feet by 24 feet, of concrete block construction, owned by Christopher Coal Company, in which the coal company stored sand for use in its nearby mine; and in which there was a coal stove used by the coal company for the purpose of drying sand, which was burning at the time of the explosion. At the time of the explosion Appalachian was an independent contractor, engaged by the coal company to drill a vertical shaft. This record contains no plat showing the relative locations of the various structures involved in this case, and there is not a single reference in the record to the points of the compass. However, from a photostat contained in the record, and reading the photostat from right to left, in the middle third thereof, the photostat discloses at the right the general location of the shaft which was being driven by Appalachian; next the general location upon which the sand house once stood before its complete demolition by the explosion; and at the far left what is designated as the 'machine shop', which, according to the evidence was located within eight feet of and directly in line behind where the sand house was located. The machine shop was owned and operated by the coal company in connection with the operation of its mine. The explosion was of such severity that it not only completely destroyed the sand house, but demolished the end of the machine shop nearest thereto. In the foreground and on a level slightly below that on which the machine shop, sand house, and shaft are located, are railroad tracks, and in the background there is a highway on a hillside, which runs parallel with the railroad tracks. This highway was about level with the roof of the sand house. Some time before the explosion the coal company had erected a ramp leading from the highway to the roof of the sand house, for the use of trucks which were wont to back up the ramp and dump their loads of sand in an opening in the roof of the sand house, which opening was four feet by seven feet.

Some time prior to December 8, 1949, the defendant, Victor Zeni, talked with Harry Conway, branch manager of American, relative to securing a tank for the storage of gasoline to be used in Appalachian's operations. On December 8, 1949, Mayfield, at the instance of American, delivered a 280-gallon tank, owned by American, and at the direction of Chris Tennant, a supervisor of Appalachian, installed the tank in the corner of the sand house, immediately under the trap door in the roof. Mayfield expressed his disapproval of the place where the tank was being installed, because of the presence of the coal stove, which, as heretofore stated, was used to dry the sand. On the following day, December 9, 1949, Mayfield furnished and assisted in installing a vent pipe, which extended from the tank up through the trap door in the roof. At that...