Jones v. Rin Eh Art & Dennis Co. Inc

• Decision Date: 14 February 1933
• Docket Number: C. C. 470.
• Citation: 168 S.E. 482
• Court: West Virginia Supreme Court
• Parties: JONES . v. RIN EH ART & DENNIS CO., Inc., et al. .

168 S.E. 482

JONES .

v.RIN EH ART & DENNIS CO., Inc., et al. .

C. C. 470.

Supreme Court of Appeals of West Virginia.

Feb. 14, 1933.

Rehearing Denied March 29, 1933.

Syllabus by the Court.

1. An employee has right of action at common law on account of disease contracted by him in the course of his employment and attributable to negligence of his employer.

2. Where an employee dies of disease contracted in the course of his employment because of negligence of his employer, the latter will be liable in an action of damages prosecuted by the personal representative of the deceased employee. Code 1931, 55-7-5.

3. Disease contracted in the course of and resulting from employment is not compensable under the West Virginia Compensation Act, Code 1931, 23-4-1, unless directly attributable to a definite, isolated, fortuitous occurrence.

4. Under the West Virginia Compensation Act, Code 1931, 23-2-6, employers are ex-empt from liability for damages at common law or by statute, for compensable injury or death of an employee, however occurring, but are not exempt from liability for non-compensable disease (caused by negligence of the employer) or death resulting from such disease.

HATCHER, J., dissenting.

Case Certified from Circuit Court, Fayette County.

Action by Dora Jones, administratrix, etc., against the Rinehart & Dennis Company, Incorporated, and another. The circuit court overruled a demurrer to the declaration and each count thereof, and certified its ruling for review. '

Ruling affirmed.

Hubard & Bacon, of Fayetteville, for plaintiff.

Brown, Jackson & Knight, of Charleston, and W. L. Lee and Dillon, Mahan & Holt, all of Fayetteville, for defendants.

MAXWELL, President.

This case involves the sufficiency of a declaration for damages for alleged wrongful death. The circuit court overruled a demurrer to the declaration and each count and certified its ruling here.

It is alleged that plaintiff's decedent was a laborer in the employ of defendant, Rinehart & Dennis Company, Inc., contractor in charge of the construction for The New Kanawha Power Company of "an underground tunnel about thirty-two feet in diameter and about four miles in length, beginning at a point on the North side of New River near the village of Hawks Nest and extending under the mountain to a point on the same side of said river near Gauley Junction in Fayette County, West Virginia." It is further alleged that defendant, Perkins, was the vice-president and general manager of the Rinehart & Dennis Company, and "was in active charge, management, supervision, direction and control of the construction of said tunnel for the said defendant company

The declaration contains six counts alleging, respectively, (1) failure of defendants to provide decedent with a safe place in which to work, (2) failure to employ experienced foremen, (3) failure to adopt and promulgate proper rules, (4) failure to warn and instruct decedent as to the dangers attendant upon his employment, (5) failure to furnish proper tools and equipment, (0) failure to provide for proper circulation of air. Each count alleges not only negligence on the part of the defendants, but also that they acted willfully, wantonly, and with deliberate intention to injure the plaintiffs decedent. In our opinion this latter allegation has no bearing on the questions before us. The portion of the statute sought to be invoked is applicable to different situations. The pertinent part of the statute, self-explanatory, reads: "If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee, shall have the privilege to take under this chapter, and shall also have cause of action against the employer as if this chapter had not been enacted for any excess of damages over the amount received or receivable under this chapter." Code 1931, 23-4-2.

The burden of the complaint, permeating each count, is that through negligence of defendants in causing and permitting large quantities of silica dust to pervade and saturate the atmosphere in said tunnel the plaintiff's decedent contracted the disease known as silicosis of which he died. It is alleged that much of the stone removed from the tunnel was more than ninety-nine per centum silica; that compressed air drills were used for the drilling of holes in said stone for the purpose of inserting explosives to dislodge the same; that large quantities of dust arose from this operation; that water was not used in the drill holes to keep down the dust, nor was any other means employed by the defendants to protect plaintiff's decedent from the deleterious effects of the dust.

It is not alleged in the declaration that the corporate defendant is not a subscriber to the state compensation fund, or, being a subscriber, is in default of the payment of premiums to which it was subject under the act and regulations of the commissioner, or that, for some other reason, it is deprived of the protection of the act. This failure of allegation is the basis of the demurrer. Demurrants rely upon holdings of this Court that in actions for damages for personal injury against defendants eligible to the protection of the workmen's compensation act, there must be averment of the failure of such employer to become a subscriber, or, having subscribed to the fund, is in default. McVey v. C. & P. Tel. Co., 103 W. Va. 519, 138 S. E. 97; Gunnoe v. Glogora Coal Co., 93 W. Va. 636, 117 S. E. 484.

Plaintiff seeks to justify the absence of such allegation from the declaration by taking the position that this case is without the terms of the Workmen's Compensation Act (Code 1931, 23-1-1 et seq.) and therefore is not controlled by the requirements thereof. The plaintiff's position is based on four propositions: (1) An employee has right of action at common law for damages for disease caused by negligence of his employer; (2) under our counterpart of Lord Campbell's Act, if such employee die of a disease so contracted, his personal representative maymaintain action for the wrongful death; (3) disease, whether occupational (no specific negligence of employer involved) or whether non-occupational but attributable to negligence of employer, is not compensable, under the West Virginia Compensation Act; (4) the compensation act exonerates employers from common law liability only in compensable matters.

The defendants neither affirm nor deny that occupational disease is...