Employers' Indemnity Co. of Philadelphia v. Kelly Coal Co.

• Decision Date: 21 November 1913
• Citation: 160 S.W. 914,156 Ky. 74
• Parties: EMPLOYERS' INDEMNITY CO. OF PHILADELPHIA v. KELLY COAL CO.
• Court: Kentucky Court of Appeals

160 S.W. 914

156 Ky. 74

EMPLOYERS' INDEMNITY CO. OF PHILADELPHIA v. KELLY COAL CO.

Court of Appeals of Kentucky.

November 21, 1913

Appeal from Circuit Court, Bell County.

Action by the Kelly Coal Company against the Employers' Indemnity Company of Philadelphia. From a judgment for plaintiff, defendant appeals. Affirmed.

Sampson & Sampson, of Middlesboro, and Helm Bruce and Bruce &amp Bullitt, all of Louisville, for appellant.

Metcalf & Jeffries, of Pineville, for appellee.

TURNER J.

Appellant insured appellee against claims for damages arising out of injuries to its employés, not exceeding $1,500 to each employé. Carmichael was killed in appellee's mine, and his personal representative instituted an action against appellee for damages by reason of its negligence. Appellee immediately notified the insurance company and called upon it to defend the action, which it refused to do upon the ground that Carmichael was not appellee's employé and therefore not embraced within the terms of the insurance. Subsequently appellee settled the Carmichael suit for $2,000 and has instituted this action against appellant for the $1,500, and $300 in addition expended by it in defending the Carmichael suit which it was the duty of appellant to do under the terms of the insurance if it was liable. There is no question made as to the propriety of the settlement with Carmichael's personal representative or as to the correctness or amount of the attorneys' fees; but it is appellant's sole contention that under the facts of this case Carmichael was not an employé of appellee, and therefore it is not liable. Upon the former appeal in this case (149 Ky. 712, 149 S.W 992, 41 L. R. A. [N. S.] 963) there was involved only a question of the sufficiency of appellant's answer; and it having been determined on that appeal that its answer was sufficient, upon the return of the case the pleadings were made up, a trial had, and a verdict and judgment for $1,800 on behalf of appellee entered. From this last judgment this appeal is taken.

The facts are that appellee operated its mines chiefly through one McBrayer, its mine foreman, and through him entered into a verbal contract with one Ramsey, whereby it was agreed that Ramsey was to get out coal from a certain part of appellee's mine and deliver the coal to a side track and keep up a certain part of the entry at the price of 70 cents per car. The part of the mine from which Ramsey was to take the coal included the entry and six or eight rooms, and he was to lay his own track, prop the rooms, and remove the slate, and the company was to furnish the cars and mules and feed them; but the right was reserved to the mine foreman upon behalf of the company to see that the work was done according to the rules of the company and to protect the property of the company, and the work was to be done so as to meet all legal requirements of the company. While Ramsey was to employ his own men and immediately supervise their work, it was all to be done under and within the rules of the company; they were to be paid through the company; but the sums so paid them were to be charged to Ramsey on the books of the company and deducted from his compensation. According to the evidence there was no stipulation in the contract as to whether the company should have the right to discharge Ramsey's men. Carmichael's time was kept on Ramsey's time book. It was turned in to the bookkeeper at the company's office; was carried on the monthly pay roll of the company in Carmichael's own name. He drew script from the company in his own name and on his own credit, which he used at the company's store in exchange for merchandise, and when pay day came, if any balance was due him, it was paid to him by the company directly. Evidently the men working under Ramsey looked to the company for their pay.

While as said above, it was not expressly stipulated in the contract between the coal company and Ramsey that the company might discharge Ramsey's employés, it is in evidence that, upon at least two occasions while Ramsey was working under the contract, two of his employés were discharged either directly by McBrayer, the foreman, or by Ramsey at the direction of McBrayer. Carmichael prior to his employment by Ramsey had been an employé in appellee's mines and had had some trouble with McBrayer; and...