Daniels v. Thacker Fuel Co.
| Decision Date | 21 November 1916 |
| Docket Number | 2905. |
| Citation | 90 S.E. 840,79 W.Va. 255 |
| Parties | DANIELS v. THACKER FUEL CO. |
| Court | West Virginia Supreme Court |
Submitted November 14, 1916.
Syllabus by the Court.
As in other matters pertaining to a trial, wide discretion should be accorded the trial court in compelling joinder in or permitting withdrawals of demurrers to the evidence, and such discretionary action will not be reviewed unless plainly arbitrary or otherwise obviously improper.
Section 17, chapter 78, Acts 1907, section 26, chapter 15H, serial section 485, Code 1913, does not prohibit the employment of a boy under fourteen years of age, on the outside of a coal mine. "In any coal mine" in the statute does not mean "in or about a coal mine."
Assuming unlawful employment of plaintiff's decedent in this case recovery would be barred because of the consent or acquiescence of the father of the boy, who would be the sole beneficiary of any judgment that might be recovered against defendant.
Error to Circuit Court, Mingo County.
Action by Henry Daniels, as administrator, against the Thacker Fuel Company. There was a judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.
Goodykoontz & Scherr, of Williamson, for plaintiff in error.
C. M Whitt, J. L. Stafford and S. U. G. Rhodes, all of Williamson and Chas. E. Hogg and Robert Hogg, both of Point Pleasant, for defendant in error.
An action on the case for the wrongful death of plaintiff's decedent, alleged to have been a boy under fourteen years of age, and employed by defendant in its coal mine contrary to the statute.
On the first trial, defendant's demurrer to the declaration having been overruled, issue was joined on the plea of not guilty, and after both parties had introduced their evidence and rested, defendant demurred to the evidence and plaintiff joined therein, and there was a conditional verdict for the plaintiff for $5,000.00, subject to the judgment of the court on the law of the case, and the court took time to consider of its judgment.
Subsequently and before judgment on the demurrer to the evidence, the court, on plaintiff's motion, and over the objection of defendant, set aside the demurrer to the evidence, and the verdict of the jury, and awarded him a new trial, the ground of the court's action, as recited in its order, being that it had committed error in overruling defendant's demurrer to the declaration, because of the absence of any averment therein that plaintiff had been duly appointed and qualified as administrator of Hollie Daniels, deceased, and this action of the court, and its refusal to sustain the demurrer to the evidence, is the first point of error assigned and relied on by defendant.
In prior decisions we have accorded to the trial court a latitude of discretion in all matters pertaining to the conduct of the trial, including joinder in and withdrawals of demurrers to evidence, and that we will not review such discretionary action unless the same has been exercised in a manner plainly arbitrary or otherwise obviously improper. Burns Bros. v. Morrison, 36 W.Va. 423, 15 S.E. 62, and cases cited; Cook v. Raleigh Lumber Co., 74 W.Va. 503, 82 S.E. 327; Norfolk, etc., R. Co. v. Coffey, 104 Va. 665, 51 S.E. 729, 52 S.E. 367.
The manifest purpose of the court in its rulings on plaintiff's motion was to permit plaintiff to amend his declaration at the bar of the court, so as to cure the defect therein. According to Moss v. Campbell's Creek R. R. Co., 75 W.Va. 62, 83 S.E. 721, L. R. A. 1915C, 1183, it was probably not necessary for the court to have set aside the demurrer to the evidence; as it could have permitted the declaration to be amended and have limited the new trial to the single issue whether plaintiff had been duly appointed and qualified as administrator. It did not do this however, but set aside the demurrer to the evidence and awarded a new trial on all issues presented by the pleadings.
Defendant insists that it was entitled to judgment on its demurrer to the evidence adduced on the first trial, without reference to its demurrer to the declaration. It is well settled that a demurrer to the evidence does not reach defects in the pleadings; but we decided in State v. Mankin, 68 W.Va. 772, [1] that by demurring to the evidence a defendant does not waive his demurrer to the declaration, but may insist upon it in the appellate court. But when the evidence is insufficient and the trial court has sustained the demurrer thereto, as held in State v. Mankin, it is unnecessary to consider the demurrer to the declaration. In the case at bar, however, the court below did not pass thereon, and we do not know what its judgment would have been on the demurrer to the evidence. In State v. Mankin, the court below sustained the demurrer, holding the evidence insufficient, and we being of opinion that there was no error therein, and that defendant's demurrer was conditional, and not in the interests of the plaintiff, that the defect in the declaration became immaterial, and we affirmed the judgment. Here the case is presented differently. We cannot go back to the demurrer to the evidence on the first trial and say that the court erred, for we see that the court never passed on that demurrer. Prior to Moss v. Railroad Co., supra, decided after the judgment awarding a new trial in this case, the practice undoubtedly was to do just what the court below did in this case, that is to set aside the demurrer or verdict of the jury and award a new trial on the amended pleadings. Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 817, 26 S.E. 431; Perry v. Coal Co., 74 W.Va. 122, 81 S.E. 844. Wherefore, we are of opinion that there is no reversible error in the judgment awarding plaintiff a new trial in the first instance.
The next point presented by plaintiff's instruction to the jury number A, given, and in rejecting defendant's instruction number 4, and on the evidence adduced, is that it is not unlawful, as claimed by plaintiff, and implied in the rulings of the court on these instructions, for a coal company to employ a boy under fourteen years to work, not in but on the outside of its coal mine. It is insisted on behalf of plaintiff that "in any coal mine" as used in the statute means "in or about" a coal mine. We cannot give the statute this limited construction. The words of the statute are "in any coal mine." The word "in," used as it is with reference to the place or situation where a boy is not permitted to be employed, plainly means "within." This statute imposes a restriction upon trade or common occupation, and is in derogation of the common law, and should be strictly construed, as we decided in Rhodes v. J. B. B. Coal Co., 90 S.E. 796, at...
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