Davis v. Fire Creek Fuel Co.

• Decision Date: 09 June 1959
• Docket Number: Nos. 11004,11015,s. 11004
• Citation: 144 W.Va. 537,109 S.E.2d 144
• Court: West Virginia Supreme Court
• Parties: Jess Chester DAVIS v. FIRE CREEK FUEL COMPANY et al. (two cases).

Page 144

109 S.E.2d 144

144 W.Va. 537

Jess Chester DAVIS v. FIRE CREEK FUEL COMPANY et al. (two cases).

Nos. 11004, 11015.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1959.

Decided June 9, 1959.

Syllabus by the Court

1. 'A declaration in case for damages resulting from personal injury which shows by its allegations that the relation of master and servant existed between plaintiff and defendant at the time of the injury, and that defendant was an 'employer' as defined in the workman's compensation act is demurrable if it does not allege facts which take the case without the terms of that act; or aver that defendant has not complied with the act by electing to come within its terms and contribute to the fund.' Pt. 1, syllabus, Gunnoe v. Glogora Coal Co., 93 W.Va. 636 .

2. 'A contract of employment for remuneration is necessary to constitute the relation of employer and employee under the Compensation Act.' Syllabus, Basham v. Kanawha County Court, 114 W.Va. 376 .

3. At common law, if the relationship of master and servant exists in any given instance and the servant or employee is not given a place to work by the employer wherein there is undisclosed danger, the employee assumes the rirks which are obvious to anyone while engaged in such work, and no negligence can be imputed to an employer for an injury which is caused thereby.

4. 'An invitation to enter upon premises, within the meaning of the law of negligence, will be implied where the entry thereon at the instance of the owner is in connection with his business or for his benefit.' Pt. 2, syllabus, Smith v. Sunday Creek Co., 74 W.Va. 606 .

5. A request of a person to do certain work is only one of the elements to be considered in determining employment, other elements being compensation for such work and the power to discharge, but the most important element is the right or power of direction and control of the manner in which the work is to be performed.

6. An instruction which contains only one element in connection with employer and employee relationship, that of a request of a person to assist in doing certain work, does not properly state the law applicable to such relationship.

7. An instruction containing the word 'may', telling the jury that it may find a verdict for one of the parties, is a permissive and not a binding instruction, and it is not error to give such instruction even though it omits facts necessary for the theories of both parties if other instructions given by the court instruct the jury fully and fairly with regard to same.

8. A clerical error or error in fact in a record should be disposed of by proper motion in the trial court.

9. A court of record speaks only through its records, and where it is stated in an order of a court of record that objections and exceptions were taken to certain actions of the trial court, such order cannot be questioned.

10. In order for a plaintiff to recover against a defendant in an action based on negligence, he must prove that the defendant was guilty of negligence and that such negligence was the proximate cause of his injury.

John S. Haight, Charleston, Arch J. Alexander, Jr., Marmet, for Jess Chester Davis.

Mahan, White, Higgins & Graney, Fayetteville, for Fire Creek Fuel Co. and others.

Scherer, Bowers & File, W. H. File, Jr., Beckley, for F. & L. Coal Co., Inc.

BERRY, Judge.

These are companion cases and will be considered together. The plaintiff below, Jess Chester Davis, instituted this action of trespass on the case in the Circuit Court of Fayette County, West Virginia, against the Fire Creek Fuel Company, a corporation, Alaska Coal Company, a corporation, Maryland New River Coal Company, a corporation, F. & L. Coal Company, Incorporated, a corporation, New River Fuel Company, Incorporated, a corporation, Maryland Coal & Coke Company, a corporation, and Robert L. Lewis. It was dismissed as to the Maryland New River Coal Company, a corporation, Maryland Coal & Coke Company, a corporation, and New River Fuel Company, Incorporated, a corporation, on motion by counsel for these defendants, which motion was not resisted by the plaintiff. The case proceeded to trial against the other defendants. At the conclusion of plaintiff's evidence, the trial court, upon motion of counsel for the F. & L. Coal Company, directed the jury to return a verdict in its favor, leaving only the Fire Creek Fuel Company, a corporation, Alaska Coal Company, a corporation, and Robert L. Lewis as defendants. At the completion of the trial the jury returned a verdict in favor of the plaintiff, against the three remaining defendants in the amount of $20,000. The trial court set aside the verdict of the jury and granted to them a new trial on the ground that it was error to give plaintiff's instruction number 3, over the objection of defendants, for the reason that it was a binding instruction and did not negative contributory negligence. The first writ of error was granted to the plaintiff, Jess Chester Davis, upon application to this Court. The second writ of error was granted later by this Court upon application of the Fire Creek Fuel Company, a corporation, Alaska Coal Company, a corporation, and Robert L. Lewis, for the alleged error on the part of the trial court in dismissing the F. & L. Coal Company as a party defendant.

The plaintiff, Jess Chester Davis, was injured on May 11, 1955, while helping to load a spool of copper wire weighing between one and three tons. The wire was owned by the defendant, Alaska Coal Company, a corporation. Robert L. Lewis was the superintendent in charge of mining operations of the defendants, Fire Creek Fuel Company and Alaska Coal Company at the time of the accident. The wire in question was located in the supply house of the Fire Creek Fuel Company. The plaintiff Davis, had a written contract with the Fire Creek Fuel Company to mine certain coal on its property, which made him an independent contractor. He lived over 600 feet from the supply house which was diagonally across the road from his house and the mine where he worked was about 1,000 feet away, directly across the road from his house. On the day of the accident he noticed the defendant Lewis at the supply house and went down to see him, a journey requiring going a few hundred feet to the side of the direct route to the mine. He stated that he had some business to transact with Lewis but that he had forgotten what it was. He said, however, that when he talked with the defendant Lewis, that Lewis told him, 'Don't run off; I want you to help us load a spool of wire.' Lewis denies that he requested Davis to help load the wire. The F. & L. Coal Company's truck had been backed up to the entrance of the supply house by Mr. Bob Fleshman, a partner in the F. & L. Coal Company. The spool of wire was loaded onto this truck, and that is the only connection the F. & L. Coal Company had with this entire transaction.

Two planks, about 12 to 16 feet in length, 12 inches in width and 2 inches thick were used as a ramp in attempting to load the spool of wire. These planks were placed on the bumper of the truck and rested on the concrete floor. The plaintiff helped place the plank on the left side of the truck. This plank had a flaw or knot in it, a fact of which both the defendant Lewis and the plaintiff were aware. Neither of the planks was 'scotched' or held firm at the end resting on the concrete floor. Between the bed of the truck and the bumper where the other end of the plank rested was about a two or three inch space over which the spool of wire would have to be rocked in order to place it on the truck. A bucket of bolts having a contacting surface of about 9 or 10 inches was placed under the plank on the right. A mining jack was placed under the plank on the left by the plaintiff, Davis, this jack having only a contacting surface of about 2 or 2 1/2 inches square. The plaintiff was located by the left plank in helping to load the spool of wire. He stated that they discussed the knot in the plank on the right and that they 'were scared of it, a little afraid of it' and that was the reason for placing the jack under it. The plaintiff stated that the door was blocked by the truck and that Robert Lewis was behind him at the time the spool of wire was being rolled upon the improvised ramp. The plaintiff says that the spool of wire was loaded under the direction and orders of Robert Lewis. The defendants' witnesses stated that plaintiff was warned about the dangerous condition of the plank and jack on his side, and his reply was, 'Oh, hell, let's load the damn wire.' There were seven men attempting to load the spool of wire by rolling it up the ramp. When the spool of wire was at the top of the ramp, the plaintiff said he noticed that it eased back, that he told them it was going to kick the board back and that the board did come off the truck and the spool of wire turned over on top of plaintiff, seriously injuring him. After the plaintiff was taken to the hospital the remaining six men loaded the spool of wire onto the truck.

The status of the plaintiff at the time of the accident is rather confusing, being made so by the various pleadings and contentions of the parties at different times in this proceeding. The declaration is based on the theory that the plaintiff was an employee of the defendants at the time he was injured, because he was asked or requested to help load the spool of wire and that the defendants owed the plaintiff the duty of providing him with a safe place to work, and to provide him with suitable and safe appliances and tools with which to work. It also alleged that he was an independent contractor with the defendant, Fire Creek Fuel Company, and was on the property for that purpose on the day of the accident. No other facts were alleged to take the case without the terms of the Workmen's Compensation Act of this state. Since there was no demurrer to the declaration, we...