Karabalis v. E. I. Du Pont De Nemours & Co

• Decision Date: 20 January 1921
• Citation: 105 S.E. 755
• Court: Virginia Supreme Court
• Parties: KARABALIS. v. E. I. DU PONT DE NEMOURS & CO.

105 S.E. 755

KARABALIS.

v.E. I. DU PONT DE NEMOURS & CO.

Supreme Court of Appeals of Virginia.

Jan. 20, 1921.

Appeal from Circuit Court, Prince George County.

Action by George Karabalis, administrator of Nick Karabalis, deceased, against E. I. Du Pont de Nemours & Co. From the action of the court in striking out parts of the amended declaration and sustaining defendant's demurrer to the remainder thereof the plaintiff appeals. Reversed and remanded, with leave to plaintiff to amend certain counts in the declaration.

The case is before us upon the amended declaration filed therein on March 17, 1917; the action of the court below in striking therefrom, and from each count thereof, on motion of the defendant, as being "immate-rial" and tending to "confuse the issues, " so much thereof as alleges that the defendant was "the owner and operator of a certain system of railroads, and as such was a corporation operating a railroad in this state"; and in sustaining the demurrer of the defendant to the declaration as it stood with the allegations just mentioned stricken therefrom.

The parties will be hereinafter referred to in accordance with their positions as plaintiff and defendant in the court below, and the plaintiff's intestate will be referred to as the deceased.

The first and third counts of the declaration are practically the same, and allege that before and at the time the cause of action arose the defendant was a foreign corporation, and "the owner and operator of a large manufacturing plant, " and also "the owner and operator of a certain system of railroads, and as such was a corporation operating a railroad in this state." In the petition for the writ of error, which was awarded in the case, the plaintiff makes the following allegation on this subject, namely: "It is alleged in the declaration that the defendant is a foreign corporation 'operating a system of railroads' in connection with its plant."

These counts further allege, in substance, that at the time the cause of action arose the defendant was engaged in the construction and building of certain buildings and tanks to be used in its manufacturing business; that a certain tank was in the course of erection, which was supported by upright pillars, some 30 feet above the ground or floor; that certain employees of the defendant, under the supervision of a foreman, were at work upon this tank and appurtenances, and were handling a large number of short sections of pipe, implements, tools, and machinery, and that they were engaged in a different department of labor from the deceased; that the deceased was employed and engaged as a common laborer in the work of tamping or packing dirt around the foundation of an upright pillar or post "very near the pillars or posts upon which the next above mentioned tank and appurtenances rested as aforesaid"; that the deceased— "was working under the direction and orders of a foreman, an agent or officer of the defendant, superior to [the deceased], and having the right to control and direct his service; that in the performance of his duties as aforesaid, and at the direction of said foreman, it became and was necessary for [the deceased] to work with his back towards the place at which the men engaged at work on said tank were working, the work of [the deceased] requiring his undivided attention.

"That thereupon it became and was the duty of the said defendant to so provide that, while obeying the orders of the said foreman and engaged in his work aforesaid, [the deceased] should not be struck or injured by the falling of any of the tools, implements, or sections of pipe, through the negligence of the agents and servants of the said defendant at work upon the platforms surrounding said tank and engaged in another department of labor from [the deceased].

"Yet the said defendant, " in disregard of its duties in that behalf, while the deceased was at work as aforesaid in his aforesaid place of work, permitted its operations to so proceed that its employees, engaged at work on said tank as aforesaid, knowing actually or constructively of the position of the deceased, "there and then negligently and carelessly caused and allowed to be dropped from the tank aforesaid, without giving any notice or warning to [the deceased], a certain section of steel or iron pipe, " which struck (the deceased) on the left side of the head, "Inflicting upon him a severe and painful wound, causing him great physical suffering, distress, and mental anguish, " etc., and from the effects of which wound and injuries the deceased thereafter on a certain day died.

The second count is substantially the same as the first and third counts, except that it, in substance, specifically alleges the duty of the defendant, through its foreman under whom the deceased was working, to warn the deceased "of the danger of being struck or injured by the falling of said tools, implements, or sections of pipe, which said danger was known to said foreman but was unknown to" (the deceased), and alleges also the breach of that duty by such foreman.

The fourth count is as follows:

"Fourth Count.

"And for this, also, to wit, that heretofore, to wit, and after the plaintiff's intestate had been struck and injured, at the time and place and in the manner set out in the foregoing counts, the said plaintiff's intestate was removed by the defendant to a hospital owned and operated by it, for the benefit of its sick and injured employees, and the said defendant then and there undertook to cure plaintiff's intestate of his hurts aforesaid:

"And thereupon it became and was the duty of the said defendant to use due and reasonable care to nurse and care for the said plaintiff's intestate, and not to discharge him therefrom until and unless he was in a proper condition to leave the same.

"But nevertheless, not regarding its duty in the premises, the said defendant, thereafter, to wit, on the 9th day of December, 1915, about twenty-four hours after the injury to the said plaintiff's intestate as aforesaid, well knowing that the plaintiff's intestate was not in condition to leave the said hospital, then and there negligently and carelessly dismissed and discharged and forceably ejected the said plaintiff's intestate from its hospital, and that, as a result of the said negligent and careless act of the defendant in dismissing and discharging and forceably ejecting the plaintiff's intestate from its hospital at the time and place and in the manner and under the condition aforesaid, the plaintiff's intestate thereafter, to wit, on the —— day of December, 1915, died.

"Wherefore the plaintiff says that damages have been sustained to the amount of ten thousand ($10,000.00) dollars, and that, by virtue of the statute in such cases made and provided, he hath a right to recover said amount, and therefore he institutes this action of trespass on the case."

The Virginia Employer's Liability Act under which this action was instituted, as the amended declaration stood before the allegations in regard to the character of the defendant corporation were stricken out as aforesaid, is contained in Acts 1912, p. 583, and, so far as material, is as follows:

"Chap. 291. An Act to amend and re-enact an act entitled 'An act imposing upon railroad corporations liability for injury to their employees in certain cases, ' approved March 27, 1902. * * *

"§ 1294-k. That every corporation operating a railroad in this state, whether such corporation be created under the laws of this state or otherwise, shall be liable in damages for any and all injury sustained by any employee of such corporation, as follows:

"When such injury results from the wrongful act, neglect or default of an agent or officer of such corporation superior to the employee injured, or of a person employed by such corporation having the right to control or direct the services of such employee injured, or the services of the employee by whom he is injured; and also when such injury results from the wrongful act, neglect or default of a co-employee engaged in another department of labor from that of the employee injured, or a co-employee (notwithstanding the fact that the party injured had the right to direct the services of the co-employee) in the performance of any duty on or about the same or another train of cars, or on or about an engine, or of a co-employee who has charge of any switch, signal point or locomotive engine, or who is charged with dispatching trains or transmitting telegraphic or telephonic orders. Knowledge by any employee injured of the defective or unsafe character or condition of any machinery, ways, appliances or structures of such corporation shall not of itself be a bar to recovery for any injury or death caused thereby. * * * " (Italics supplied.)

The italicised portions of the statute constitute the amendments to the original act.

The title of the original act was as follows: "An act imposing upon railroad corporations liability for injury to their employees in certain cases."

The original is contained in Acts 1901-02, p. 335, was approved March 27, 1902, before the Constitution of the state of 1902 was adopted, and, so far as the instant case is affected, contains precisely the same provisions as are contained in the statute as it stood at the time the action in the instant case was instituted.

The Constitution of 1902, so far as material in the instant case, contains the following provisions:

Sec. 162. Fellow-servant doctrine abolished to extent stated.

"The doctrine of fellow-servant, so far as it affects the liability of the master for injuries to his servant resulting from the acts or omissions of any other servant or servants of the common master, is, to the extent hereinafter stated, abolished as to every employee of a railroad company, engaged in the physical construction, repair or maintenance of its roadway, track or any of the structures connected therewith or in any work in or upon a car or engine...