Collins v. Dravo Contracting Co, No. 7639.

CourtSupreme Court of West Virginia
Writing for the CourtKENNA
Citation171 S.E. 757
PartiesCOLLINS . v. DRAVO CONTRACTING CO.
Docket NumberNo. 7639.
Decision Date17 October 1933

171 S.E. 757

COLLINS .
v.
DRAVO CONTRACTING CO.

No. 7639.

Supreme Court of Appeals of West Virginia.

Oct. 17, 1933.


[171 S.E. 757]

Rehearing Denied Dec. 12, 1933.

Syllabus by the Court.

Where a declaration in one count alleges noncompliance with the Workmen's Compensation Act and sets up a theory of recovery for death by wrongful act on the basis of common-law negligence of a master toward a servant and also a theory of recovery for death in consequence of the deliberate intent of the master to produce the injury or death of his servant under Code 23-4-2, the two theories relied upon render the declaration duplicitous but not repugnant, and a plea thereto setting up full compliance with the Workmen's Compensation Act on the part of the master is not a defense to that part of the declaration alleging deliberate intention on the part of the master to produce the injury or death of his servant and the death of the servant in consequence of acts done or things permitted with such intent A judgment based upon a verdict deciding the issue raised by such a plea alone, in the absence of an election by the plaintiff to so proceed, will be set aside.

Error to Circuit Court, Kanawha County.

Action by Orpha Collins, administratrix of the estate of James Collins, deceased, against the Dravo Contracting Company.

Judgment for defendant, and plaintiff brings error.

Judgment reversed and cause remanded with directions.

J. Thos. Ward, of South Bend, Tnd., A. M. Belcher, of Charleston, and Herbert Stansbury, of Beckley, for plaintiff in error.

Koontz, Hurlbutt & Revercomb, of Charleston, for defendant in error.

KENNA, Judge.

Orpha Collins, administratrix of the estate of James Collins, deceased, brought an action for wrongful death of her decedent against Dravo Contracting Company in the circuit court of Kanawha county. The action was properly matured, and on February 18, 1933, an amended declaration in one count was filed. For the purposes of this writ of error, the original declaration has been abandoned. The amended declaration alleges that on the 23d day of April, 1932, the defendant was engaged in the construction of certain locks in the Kanawha river at or near Marmet, and that in that work it employed James Collins as a workman in an excavation under an overhanging bank; that it was the duty of the said defendant to use due and proper care to provide him with a reasonably safe place to work; to provide proper equipment and appliances; that the defendant wholly disregarded the performance of such duties, and "caused the said plaintiff's decedent unlawfully, wilfully, deliberately, and with deliberate intent, and wrongfully and negligently to work in an unsafe place where his life was endangered, and with deliberate intent, to injure or kill him, all of which was known to the defendant and those acting for the defendant, " etc., in this to wit: "The bank where the excavation was being made had broken, all of which the defendant well knew and understood, and the probability of caving in and destroying the life of the plaintiff's decedent was expected and well understood by the said defendant and those engaged in its service and responsible for the construction aforesaid; that many times prior to the caving in of the bank which caused the death of plaintiff's decedent, the said bank had caved in causing great quantities of earth to slide or fall into the place where plaintiff's decedent was ordered to, or required to work; that the danger of the bank again sliding, or the danger of it momentarily sliding or caving in was so apparent that the said defendant, at all times, had notice and was charged with notice that the place where plaintiff's decedent was required to work was nothing more or less than a death-trap; that the condition of the said bank above where the plaintiff's decedent was working was such as to cause, and it was the duty of the defendant to cause, the said bank to be protected or properly sloped so as to

[171 S.E. 758]

prevent its slipping down or falling upon the plaintiff's decedent; yet, disregarding all of the defendant's duties so owed by the defendant to the plaintiff's decedent, as aforesaid, the said defendant, wholly, wilfully, deliberately, wrongfully and negligently, failed and with deliberate intent to injure or kill him, refused so to do, and by virtue of such wholly, wilful, wrongful, deliberate, and unlawful negligence, the said bank caved in and by result of such caving of such bank, the plaintiff's decedent was entombed, and because of same, died by reason thereof, in the County and State aforesaid.'' The declaration further alleges that the defendant elected to comply with the requirements of the Workmen's Compensation Act (Code 1981, 231-1 et seq.), paid the premiums, but failed to post and keep posted the notices prescribed by that act.

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24 practice notes
  • Meyn v. Dulaney-miller Auto Co, No. 8465.
    • United States
    • Supreme Court of West Virginia
    • April 3, 1937
    ...state, such defect now cannot be reached by demurrer. Code, 56-4-37; Collins, Administratrix, v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757; McMechen et al. v. Baltimore & Ohio Railroad Co., 90 W.Va. 21, 110 S.E. 474; Huff v. Lanes Bottom Bank, 110 W.Va. 389, 158 S.E. 380; Farmers' ......
  • Mandolidis v. Elkins Industries, Inc., Nos. 13926
    • United States
    • Supreme Court of West Virginia
    • June 27, 1978
    ...supplied). We now turn to an analysis of our case law construing this statute. In Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), the Court rejected the proposition that an employer could never "deliberately intend" to cause an injury or death by an act of omission, 5 ......
  • Cline v. Joy Mfg. Co., Nos. 15649
    • United States
    • Supreme Court of West Virginia
    • September 29, 1983
    ...warrant such finding would have to be clear and forceful in high degree." Page 839 In Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), we concluded that if the facts alleged in the plaintiff's declaration were proved at trial, they would be sufficient to carry the quest......
  • Daugherty v. Baltimore & O. R. Co., Nos. 10268
    • United States
    • Supreme Court of West Virginia
    • March 21, 1951
    ...the trial. Meyn v. Dulaney-Miller Auto Company, 118 W.Va. 545, 191 S.E. 558; Collins, Adm'x, v. Dravo Contracting Company, 114 W.Va. 229, 171 S.E. 757; Grass v. Big Creek Development Company, 75 W.Va. 719, 84 S.E. 750, L.R.A.1915E, 1057; Gartin, Adm'r, v. Draper Coal & Coke Company, 72 W.Va......
  • Request a trial to view additional results
24 cases
  • Meyn v. Dulaney-miller Auto Co, No. 8465.
    • United States
    • Supreme Court of West Virginia
    • April 3, 1937
    ...state, such defect now cannot be reached by demurrer. Code, 56-4-37; Collins, Administratrix, v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757; McMechen et al. v. Baltimore & Ohio Railroad Co., 90 W.Va. 21, 110 S.E. 474; Huff v. Lanes Bottom Bank, 110 W.Va. 389, 158 S.E. 380; Farmers' ......
  • Meyn v. Dulaney-Miller Auto Co.., (No. 8465)
    • United States
    • Supreme Court of West Virginia
    • April 3, 1937
    ...such defect now cannot be reached by demurrer. Code 56-4-37; Collins, Administratrix, etc. v. Dravo Contracting Co., 114 W. Va. 229, 171 S. E. 757; McMechen et al. v. Baltimore & Ohio Railroad Co., 90 W. Va. 21, 110 S. E. 474; Huff V. The Lanes Bottom Bank, 110 W. Va. 389, 158 S. E. 380; Fa......
  • Savilla v. Speedway Superamerica, LLC, No. 33053.
    • United States
    • Supreme Court of West Virginia
    • November 16, 2006
    ...deliberate intent to produce death (Code 1931, 23-4-2, 55-7-6)." Syllabus Point 3, Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 2. A personal representative who is not one of the statutorily-named beneficiaries of a deliberate intention cause of action authorized by W.Va.Co......
  • Mandolidis v. Elkins Industries, Inc., Nos. 13926
    • United States
    • Supreme Court of West Virginia
    • June 27, 1978
    ...supplied). We now turn to an analysis of our case law construing this statute. In Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), the Court rejected the proposition that an employer could never "deliberately intend" to cause an injury or death by an act of omission, 5 ......
  • Request a trial to view additional results

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