Brewer v. Appalachian Constructors, No. CC780

CourtSupreme Court of West Virginia
Writing for the CourtGIVEN
Citation65 S.E.2d 87,135 W.Va. 739
PartiesBREWER, v. APPALACHIAN CONSTRUCTORS, Inc., et al.
Decision Date08 May 1951
Docket NumberNo. CC780

Page 87

65 S.E.2d 87
135 W.Va. 739
BREWER,
v.
APPALACHIAN CONSTRUCTORS, Inc., et al.
No. CC780.
Supreme Court of Appeals of West Virginia.
Submitted April 11, 1951.
Decided May 8, 1951.

Page 88

Syllabus by the Court.

1. Where separate and distinct negligent acts of two or more persons continue unbroken to the instant of an injury, contributing directly and immediately thereto

Page 89

and constituting the efficient cause thereof, such acts constitute the sole proximate cause of the injury.

2. Where negligent acts of two or more persons constitute the sole proximate cause of an injury, the joint tort feasors may be joined in one action.

3. In an action by an employee against an employer, who is a subscriber to the workmen's compensation fund and not in default, for an injury committed with deliberate intent, the allegations of the declaration must allege facts showing, or clearly implying, such intent; negligence, however wanton, does not supply such intent.

Albert M. Morgan, Don J. Eddy, Morgantown, for plaintiff.

Jesse M. Jaco, Morgantown, George Fumich, Jr., Pursglove, Furbee & Hardesty, Russell L. Furbee, C. H. Hardesty, Jr., Fred L. Lemley, Fairmont, for defendants.

[135 W.Va. 740] GIVEN, Judge.

Plaintiff, John D. Brewer, in this action of trespass on the case, instituted in the Circuit Court of Monongalia County, seeks to recover damages against Appalachian Constructors, Inc., a corporation, and Victor Zeni, its employee; The American Oil Company, a corporation, and Dale Mayfield, its employee; and Christopher Coal Company, a corporation, and Guy Hinerman, its employee. The injuries for which plaintiff seeks recovery resulted from an explosion of dynamite on December 29, 1949, alleged to have been caused by negligent acts of defendants. The defendants filed separate demurrers to the declaration, one of the grounds of the several demurrers being that the declaration alleges, and improperly joins, several causes of action, and misjoins parties defendant. The trial court sustained each of the several demurrers and certified to this Court the following questions: '1. Whether there exists in this action a misjoinder of parties defendant. 2. Does the Declaration allege a cause of action against the defendants, or any of them?'

It appears from the declaration that the Christopher Coal Company was the owner of certain premises 'known as the Brock No. 4 Mine', in Monongalia County, and that, 'pursuant to an agreement' with the coal company, the Appalachian Constructors, Inc., was, at the time of the explosion, engaged in the construction of a vertical air shaft on the premises. Two buildings, the sand house and the machine shop, about four feet distant from each other, were situated on the premises. The sand house, about sixteen feet by twenty-four feet, of cement block construction, with a sand floor, was used by Appalachian Constructors in connection with its construction of the air shaft. The machine shop was approximately thirty feet by sixty feet, of cement block construction, and was used by the Christopher Coal Company and its employees, including the plaintiff, as a shop and office, and for storage of equipment and tools of the coal company. There was located in the sand house a gasoline storage tank of 242 gallons capacity, property of the American Oil Company. [135 W.Va. 741] There was also situated in the sand house a heating stove, wherein a fire was burning at the time of the explosion. The declaration charges that Appalachian Constructors and its employee did 'carelessly, recklessly, injuriously and contrary to law, and in violation and disregard of the statute of the State of West Virginia prohibiting the storage of powder or other explosives in or near mine buildings, have stored in said sand house building on the day and year aforesaid a large quantity of powder and explosives, in cases therefor, to-wit, fifteen hundred dynamite caps and three hundred sticks of dynamite composed of dangerous chemicals', and that these defendants also kept stored in the sand house a large quantity of gasoline.

Pursuant to an order from the Appalachian Constructors, the American Oil Company, through its employee, Dale Mayfield, delivered a quantity of gasoline into the storage tank in the sand house, with knowledge that a fire was burning in the heating stove therein. The delivery of gasoline into the storage tank was made by means of a

Page 90

hose running from a tanker truck, elevated on a ramp, through an opening in the roof of the sand house, into an opening in the top of the storage tank, the flow of the gasoline being by gravity. After the hose from the tanker truck was so connected to the storage tank and the valve of the tanker truck opened, the employee of the American Oil Company 'did negligently, carelessly, recklessly and injuriously walk away from said tanker truck with said valve open, allowing, providing and permitting gasoline to flow from said tanker truck through said hose into the gasoline storage tank in said sand house, by gravity flow, until the said storage tank in said sand house building became full of said gasoline, and said gasoline did thereby overflow and run over said storage tank down on to and upon said cradle structure and upon the said sand house floor, and run over and about the floor of said sand house, and about the said lighted and burning coal heating stove, and gas fumes and vapor did permeate the interior of the said sand house building,' [135 W.Va. 742] and ignited from the fire in the stove; and after the gasoline had ignited, did 'negligently, recklessly, carelessly and injuriously drive said tanker truck away from said sand house building without closing the said valve or uncoupling the said hose from the rear of said tanker truck,' thus causing and permitting gasoline to flow through the hose into the sand house, over its walls, on to the wooden structure supporting the roof, and that the heat from the burning gasoline and building caused the storage tank to explode, 'detonating and exploding the dynamite'.

The declaration alleges that the Christopher Coal Company, through its employee, Guy Hinerman, its 'outside foreman', saw and had actual knowledge of the fact that the defendant, Appalachian Constructors, had illegally stored the dynamite, dynamite caps, and a large quantity of gasoline in said sand house, and that the 'burning coal fire' was then in the sand house; that plaintiff had no knowledge of such facts; that the Christopher Coal Company and Guy Hinerman 'did carelessly, negligently, injuriously, and with deliberate intent to kill or injure plaintiff, omit and fail to have the explosive and inflammable dynamite and gasoline removed from the sand house and did fail and omit to warn plaintiff of the danger and risk to plaintiff of being in or near the sand house, and that after the sand house was aflame that defendant negligently, carelessly, injuriously, and with deliberate intent to injure or kill plaintiff, ordered, instructed, directed, encouraged, suffered, allowed and permitted plaintiff to go into the machine shop building' for the purpose of salvaging tools therein. While plaintiff was attempting to salvage the tools the explosion occurred and severely injured him.

The proximate cause of the injury is alleged in this language: 'This plaintiff alleges that all of said injuries and losses sustained by him were caused by and are the direct and proximate result of the joint and concurrent negligence and carelessness of each, every and all of said [135 W.Va. 743] defendant, and the deliberate intent of the said Christopher Coal Company and its agent, Guy Hinerman, to so injure plaintiff, as aforesaid, without any fault or negligence on the part of the plaintiff.'

The declaration, containing one count only, sets out in much more detail the facts outlined above. Appalachian Constructors contends that there is a misjoinder of parties, resulting from a misjoinder of...

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36 practice notes
  • Hartley v. Crede, No. 10651
    • United States
    • Supreme Court of West Virginia
    • 1 Octubre 1954
    ...causes or contributes to the injury of another person. Wilson v. Edwards, W.Va., 77 S.E.2d 164; Brewer v. Appalachian Constructors, 135 W.Va. 739, 65 S.E.2d 87; Sigmon v. Mundy, 125 W.Va. 591, 25 S.E.2d 636; Miller v. Douglas, 121 W.Va. 638, 5 S.E.2d 799; Starcher v. South Penn Oil Company,......
  • Metro v. Smith, No. 12111
    • United States
    • Supreme Court of West Virginia
    • 27 Febrero 1962
    ...v. Johnson, 139 W.Va. 607, 80 S.E.2d 857; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164; Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87; Sheff v. City of Huntington, 16 W.Va. 307. In the Brewer case we cited with approval the following statement from 65 C.J.S. Negli......
  • Cline v. Joy Mfg. Co., Nos. 15649
    • United States
    • Supreme Court of West Virginia
    • 29 Septiembre 1983
    ...190, 23 S.E.2d 601 (1942). 5 E.g., Eisnaugle v. Booth, 159 W.Va. 779, 226 S.E.2d 259 (1976); Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951); Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631, 186 S.E. 612 (1936); Maynard v. Island Creek Coal Co., 115 W.Va. 249......
  • Wehner v. Weinstein, Nos. 21911
    • United States
    • Supreme Court of West Virginia
    • 20 Abril 1994
    ...such acts constitute the sole proximate cause of the injury.' Point 1, Syllabus, Brewer v. Appalachian Constructors, Inc., et al., 135 W.Va. 739 [65 S.E.2d 87 (1951), overruled on other grounds, Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978) ]." Syllabus Po......
  • Request a trial to view additional results
36 cases
  • Hartley v. Crede, No. 10651
    • United States
    • Supreme Court of West Virginia
    • 1 Octubre 1954
    ...causes or contributes to the injury of another person. Wilson v. Edwards, W.Va., 77 S.E.2d 164; Brewer v. Appalachian Constructors, 135 W.Va. 739, 65 S.E.2d 87; Sigmon v. Mundy, 125 W.Va. 591, 25 S.E.2d 636; Miller v. Douglas, 121 W.Va. 638, 5 S.E.2d 799; Starcher v. South Penn Oil Company,......
  • Metro v. Smith, No. 12111
    • United States
    • Supreme Court of West Virginia
    • 27 Febrero 1962
    ...v. Johnson, 139 W.Va. 607, 80 S.E.2d 857; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164; Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87; Sheff v. City of Huntington, 16 W.Va. 307. In the Brewer case we cited with approval the following statement from 65 C.J.S. Negli......
  • Cline v. Joy Mfg. Co., Nos. 15649
    • United States
    • Supreme Court of West Virginia
    • 29 Septiembre 1983
    ...190, 23 S.E.2d 601 (1942). 5 E.g., Eisnaugle v. Booth, 159 W.Va. 779, 226 S.E.2d 259 (1976); Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951); Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631, 186 S.E. 612 (1936); Maynard v. Island Creek Coal Co., 115 W.Va. 249......
  • Wehner v. Weinstein, Nos. 21911
    • United States
    • Supreme Court of West Virginia
    • 20 Abril 1994
    ...such acts constitute the sole proximate cause of the injury.' Point 1, Syllabus, Brewer v. Appalachian Constructors, Inc., et al., 135 W.Va. 739 [65 S.E.2d 87 (1951), overruled on other grounds, Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978) ]." Syllabus Po......
  • Request a trial to view additional results

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