Brewer v. Appalachian Constructors

• Decision Date: 08 May 1951
• Docket Number: No. CC780,CC780
• Citation: 65 S.E.2d 87,135 W.Va. 739
• Court: West Virginia Supreme Court
• Parties: BREWER, v. APPALACHIAN CONSTRUCTORS, Inc., et al.

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.

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

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.

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. 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 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,' 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 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 causes of action; that the several acts of negligence were wholly independent of each other, giving rise to several separate and distinct causes of action; and that, therefore, the alleged negligence of Appalachian Constructors did not directly or immediately cause the injury, such acts not constituting joint or concurrent negligence. It also contends that the alleged negligence of American Oil Company was the 'intervening efficient cause', or sole proximate cause of the injury. The American Oil Company contends that the several acts of negligence alleged are 'separate and distinct', and that there was no 'concerted action or community of responsibility between The American Oil Company and other defendants'. The position of the Christopher Coal Company is that 'several and different causes of action' are alleged and improperly joined and that, being a subscriber to the workmen's compensation fund, it is released or relieved from liability as to the injury of plaintiff. The question facing the Court, therefore, is whether the alleged acts of negligence constitute separate and distinct causes of action, or whether together they constitute the immediate proximate cause of the injury, creating only one cause of action.

From the facts alleged it sufficiently appears that the negligent acts of the Appalachian Constructors and its employee in the storing of the dynamite and the gasoline, dangerous agencies, in the building wherein the fire was burning, continued to the instant of the explosion, therefore contributing immediately and directly to the injury of plaintiff. That the fire and explosion should have been anticipated and were foreseeable by these defendants can not be doubted. Neither can it be doubted that defendants should have anticipated that injury would result to persons in or near the buildings in the event of such an explosion. At the time of the explosion the fire negligently caused by the acts of American. Oil Company and its employee was still burning, and without which negligence the gasoline tank or dynamite would not have exploded. Such fire...