Gunnoe v. Glogora Coal Co

• Citation: 117 S.E. 484
• Decision Date: 24 April 1923
• Docket Number: (C. C. No. 228.)
• Parties: GUNNOE v. GLOGORA COAL CO.
• Court: Supreme Court of West Virginia

117 S.E. 484

GUNNOE

v.GLOGORA COAL CO.

(C. C. No. 228.)

Supreme Court of Appeals of West Virginia.

April 24, 1923.¹

(Syllabus by the Court.)

[Ed. Note.—For, other definitions, see Words and Phrases, First and Second Series, Employe]

Case Certified from Circuit Court, Raleigh County.

Action by E. H. Gunnoe against the Glogora Coal Company. The court overruled plaintiff's demurrer to the special pleas of defend ant, and denied his motion to quash and strike them from the record. On certified questions. Ruling in overruling demurrer reversed.

J. W. Maxwell, of Beckley, for plaintiff.

D. D. Ashworth, Ashton File and W. W. Goldsmith, all of Beckley, for defendant.

LIVELY, J. The two questions certified relate (1) to the action of the lower court in overruling defendant's demurrer to plaintiff's declaration; and (2) permitting defendant to file two special pleas.

The declaration contains three counts, in the first of which common-law negligence resulting in the injury of plaintiff is charged, and there is no allegation (hat defendant had not at the time of the accident complied with the workmen's compensation law. Plaintiff, in the lower court and here, admits that the count is not sufficient, for that reason. The other two counts in effect charge that defendant, on the 14th of March, 1921, was the owner and operator of a drift coal mine in Raleigh county, and was mining coal therefrom; that in the conduct of its business it employed a large number of men, including plaintiff; that it failed to employ a competent mine foreman, and in consequence thereof the mine was operated in an unlawful and incompetent manner, and that defendant permitted the air course in the mine to become blocked with coal and debris, which interfered with the ventilation so that it did not afford 100 cubic feet of air per minute for each person therein employed, as provided for by the mining law, and by reason thereof gas accumulated in the mine and exploded, whereby the plaintiff was injured while in discharge of his duty of mining at the face of the coal in the obstructed air course; that defendant unlawfully employed and permitted plaintiff to work while the air course was obstructed by coal, so that it did not afford 100 cubic feet of air per minute for each person employed therein, and by reason of its failure to employ a competent mine foreman, and by reason of its negligence in allowing the air course to become obstructed by coal and the consequent accumulation of explosive gases, the explosion occurred, resulting in the injury to the plaintiff, for which he sues.

Defendant demurred to the declaration and each count thereof, which demurrer was overruled, whereupon defendant entered its plea of the general issue and tendered two special pleas numbered special plea 1, and special plea 2, which pleas were permitted to be filed over plaintiff's objection; plaintiff demurred to the special pleas and moved to quash them and strike them from the record, which demurrer was overruled and the motion to quash and strike was denied; thereupon the court, upon joint application, certified to this court the following questions:

(1) Does the declaration state a cause of action under the law?

(2) Are the facts set up in defendant's special pleas numbered 1 and 2 or either of them sufficient in law to present a defense to the cause of action stated in the declaration, if any cause of action be therein stated? Special plea No. 1 says that at the time of the alleged injury defendant was an employer within the provisions of the Workmen's Compensation Act and had at that time become a subscriber and had elected to pay into the workmen's compensation fund the money required of it by law and had given the proper notice thereof to all its employees and had in all respects fully complied with the Workmen's Compensation Act and was entitled to the protection thereof. Special plea No. 2 reiterates the facts stated in special plea No. 1, and in addition thereto says that plaintiff, prior to the institution of the suit, had applied for and received compensation out of the workmen's compensation fund for the alleged injury.

Plaintiff insists that the second and third counts of his declaration are good and state cause of action, without alleging therein that defendant, although an employer within the meaning of the Workmen's Compensation Act, had failed to become a subscriber to that fund, because, he says, that he was not an employee within the meaning of that act, being in the class of persons prohibited from being employed by section 9 thereof, which defines employers and employees subject to that act. The contention is that he was employed and permitted to work in a place in defendant's mine where it was unable to maintain at least 100 cubic feet of air per minute, and therefore he was included within the class of persons prohibited by law from being employed. Section 9 of the Workmen's Compensation Act defines employees as follows:

"All persons in the service of employers as herein defined and employed by them for the purpose of carrying on the industry, business or work in which they are engaged, and check weighmen as provided for in chapter 20, acts of one thousand nine hundred and eleven, are employees within the meaning of this act and subject to its provisions, provided that the act shall not apply to employers of employees in domestic or agricultural service, persons prohibited by law from being employed, traveling salesmen, to employees of any employer while employed without the state; nor shall a member of a firm of employers, or any officer of an association, or of a corporation employer, including managers, superintendents, assistant managers and assistant superintendents, any elective official of the state, county or municipal corporation be deemed an employee within the meaning of this act."

plaintiff says that he falls within the class of persons "prohibited by law from being employed, " and therefore not an employee within the meaning of the Compensation Act, and not entitled to its protection, and that defendant is not entitled to its protection so far as he is concerned, because under section 20 chapter 15H, of the mining laws of the state (Code 1913, § 479) it is provided that:

"No operator, agent or mine foreman shall permit any person to work where they are unable to maintain at least one hundred cubic feet of air per minute, but this shall not be construed to prohibit the operator from employing men to make the place of employment safe and to comply with this requirement."

To support this contention we are cited to our cases of Morrison v. Coal Co., 88 W. Va. 163, 106 S. E. 448; Mangus v. Coal Co., 87 W. Va. 718, 105 S. E. 909; Norman v. Coal Co., 68 W. Va. 405, 69 S. E. 857, 31 L. R. A. (N. S.) 504; Blankenship v. Coal Co., 69 W. Va. 74, 70 S. E. 863; also to Stetz v. Boot & Shoe Co., 163 Wis. 151, 156 N. W. 971, Ann. Cas. 1918B, 675; Acklen Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N. E. 229, 14 A. L. R. 812; Wolff v. Cotton Mills, 185 App. Div. 436, 173 N. Y. Supp. 75; Hetzel v. Ring Co., 89 N. J. Law, 201, 98 Atl. 306, L. R. A. 1917D, 75. All of these cases were where infants under the age of employment had been injured; and where an infant under the employment age is employed in an industry or business coming within the Workmen's Compensation Act, the employer is not protected by that act, although he may be a subscriber thereto, if an injury occurs to the infant. Neither is the infant entitled to compensation from the fund. Clearly, an infant under the age of employment in a particular industry falls within the class of persons prohibited by law from being employed. The employment in a coal mine of a miner under the age fixed by statute making it unlawful to employ such minor makes out a case of prima facie negligence on the part of the employer when there is a subsequent injury to the minor resulting from and in the course of the employment. Bobbs v. Press Co., 89 W. Va. 206, 108 S. E. 879. It may be conceded that where a person is prohibited from being employed the Workmen's Compensation Act does not protect the employer from an injury resulting to that person while in the employment. The cases above cited throw little light upon the question whether plaintiff is within the class of persons prohibited by law from being employed in any industry.

To sustain plaintiff's proposition that he is within the class of persons prohibited by law from being employed we are also cited to Cincinnati, H. & D. R. Co. v. Van Horne, 69 Fed. 139, 16 C. C. A. 182, Narramore v. Cleveland, C., C. & St. L. R. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68, and Kemp v. Lewis, 3 K. B. (Eng.) 548. In Cincinnati v. Van Horne, cited, plaintiff was injured by catching his foot in a guard rail. The statestatute made it obligatory upon the railroad company to block its guard rails, so as to prevent the feet of its employees from being caught therein. The defense was that a block which would have prevented the injury would have been inconsistent with the safe running of the trains, and so could not be required. It was held that evidence that after the accident a sufficient block was in...