Byrd v. Sabine Collieries Corp.

• Decision Date: 21 November 1922
• Citation: 92 W.Va. 347
• Court: West Virginia Supreme Court
• Parties: B. P. Byrd, Amir, v. Sabine Collieries Corporation.

92 W.Va. 347

B. P. Byrd, Amir,

v.Sabine Collieries Corporation.

Supreme Court of Appeals of West Virginia.

Submitted November 16, 1922.

Decided November 21, 1922.

1. Master and Servant Declaration Showing Employer Within Compensation Act Demurrable.

A declaration in a case seeking a recovery for personal injuries to an employe, which shows that the employer comes within the terms of the Workmen's Compensation Act and does not allege facts which take the particular case without the terms of that Act, or that the employer has not complied with the terms of the Act by electing to take advantage of the same, and paying into the fund as provided by law, is bad on demurrer, (p. 346).

2. Same Minor Within Compensation Act, Though His Employment Forbidden by Parent.

The provision of the Workmen's Compensation Act, excluding from its operation persons prohibited by law from being employed, means such persons as are by statute prohibited from being employed in a particular kind of service, and cannot be extended to include the minor son of one who has forbidden his employment in a particular capacity, when by the law of the land his employment in such capacity is not prohibited, (p. 349).

Error to Circuit Court, Wyoming County.

Action by B. F. Byrd, administrator, against the Sabine Collieries Corporation. Judgment for defendant, and plaintiff brings error.

Affirmed.

Wirt Dunlap, Grover C. Worrell and J. Albert Toler, for plaintiff in error.

Ashton File and W. W. Goldsmith, for defendant in error. Ritz, judge:

The plaintiff instituted this suit to recover damages because of the death of his decedent while employed in the defendant company's mine. A verdict was rendered by the jury in favor of the defendant, upon which the judgment of nil capiat complained of was entered.

It appears that plaintiff's decedent, a boy sixteen years, four months and twenty-three days old, was employed by the defendant in its mine. The plaintiff, his father and administrator, was also at the same time in the employ of the defendant. On the day upon which the injury occurred the boy was employed about the defendant's tipple, but a short time before noon of that day he was taken by the defendant's superintendent and placed in the mine as a brakeman on a trip of cars. While he was thus employed one of the cars became derailed, and he was caught between the derailed car and the side of the entry, and so crushed that he died in a few days thereafter. The plaintiff brings this suit as administrator of his deceased son to recover damages for his death, and the basis thereof is that the boy was employed in the defendant's mine over the protest of his father, and in defiance of the father's direction not to employ the boy on the inside of the mine. The declaration alleges that the boy was employed on the inside of the defendant company's mine as a brakeman, notwithstanding his father had forbidden the defendant to so employ him. There is no allegation in the declaration that the defendant company had not elected to comply with the terms of the Workmen's Compensation Act so as to be entitled to the protection afforded employers by the terms of that Act. The defendant pleaded that it had complied with the terms of the Workmen's Compensation Act; that it had paid into the compensation fund the amounts provided by law to be paid, and that it was not further liable to the plaintiff on account of the injury and subsequent death of his son. It will thus he seen that the only question presented for decision is, whether or not the defendant company is protected by the provisions of the Workmen's Compensation Act as to the employment of this particular boy?

The defendant demurred to the plaintiff's declaration, and insists that its demurrer should have been sustained upon the ground that said declaration, while showing that the defendant is an employer coming within the purview of the Act, does not allege that it had not complied with its provisions. The plaintiff contends, however, that the demurrer to the declaration was properly overruled, and that he is not barred from recovery because of the provisions of the Workmen's Compensation Law, for the reason that the employment of the boy under the circumstances was in violation of law.

It is stipulated that the defendant has complied with all of the provisions of the Workmen's Compensation Act, and has paid into that fund the amounts required to be paid by it. There is likewise no contention as to the age of the plaintiff's decedent, The defendant was not, because thereof, prohibited from employing him in the mine, and the plaintiff does not contend that such is the case, but he does contend that the fact that he prohibited the employment of the boy in the mine makes his employment thereafter such a one as is prohibited by law within the meaning of the proviso contained in § 9 of eh. 15P of the Code. Of course, if he is right about this, then the declaration is not bad for failing to aver that the defendant had...