KiRkHaRt v. United Fuel Gas Co.

CourtSupreme Court of West Virginia
Writing for the CourtRITZ, J.
Citation86 W.Va. 79
Parties.A. L. KiRkHaRt v. United Fuel Gas Company.
Decision Date30 March 1920

86 W.Va. 79

A. L. KiRkHaRt
v.
United Fuel Gas Company.

Supreme Court of Appeals of West Virginia.

Submitted March 23, 1920.
Decided March 30, 1920.


[86 W.Va. 79]

1. Evidence On Question of Mere Existence of Written Contract it Need not be Offered in Evidence, but Where its Construction is Involved it Must be Put in Evidence Unless Lost.

Where for the purpose of an inquiry it becomes material to prove the existence of a contract which is in writing, the same need not be produced and offered in evidence if it is only necessary to prove that it exists, and its general tenor and effect; but if a consideration of its contents and a construction of its terms are necessary in order to a determination of the question involved, the writing must be introduced in evidence, unless it appears that it has been lost. (p. 82).

2. Same Testimony of Custodian of a Writing Held not to Jus-tify Parol Proof of its Contents.

Evidence by the custodian of a writing that it was in existence on the day before the evidence is being heard, and that he had phoned to his assistant in another city to send him

[86 W.Va. 80]

such writing, and such assistant advised him that he had forwarded the same by special delivery mail, and that the same had not arrived, does not satisfactorily account for the absence of the writing so as to justify proof of its contents by parol evidence. (p. 82).

3. Master and Servant Employer Has Burden of Proving Relation of Independent Contractor.

Where the plaintiff in a suit to recover damages for a personal injury proves that the work in which he was engaged at the time of the injury was being conducted upon the premises of the defendant for its benefit, and that the services rendered by him were paid for by the defendant, he has made out a prima facie case showing the existence of the relation of master and servant between the defendant on the one hand and him and his coemployees on the other; and if the defendant would defeat liability for the injury upon the ground that such defendant and his coservants were employees of an independent contractor, the burden is upon him to show such fact. (p. 84).

4. Same Requisites of Proof that One is Contractor.

The determination of the question of whether a person performing work or doing business for another is a contractor for whose negligence the employer is not liable, or a servant for whose acts the employer is responsible, depends upon a consideration of the contract of employment, the nature of the business, and the circumstances under which the parties contracted and the work was being done; and where such defense is interposed in a suit to recover damages for personal injuries received it cannot be sustained, unless the defendant proves the contract under which the work is being done and shows the circumstances and conditions in connection therewith, so that the court may determine therefrom the relation existing between such defendant and the party doing the work, as well as the injured plaintiff. (p. 84).

5. Same Facts Showing Relation of Independent Contractor Must be Proved.

An employer who seeks to bring himself within the rule excusing him from liability for injury to an employe, upon the ground that the work is being done by an independent contractor, in a case which shows prima facie the relation of master and servant, must by proof establish the facts essential to the applicability of such rule. (p. 84).

Error to Circuit Court, Roane County.

[86 W.Va. 81]

Action by A. L. Kirkhart against the United Fuel Gas Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

R. G. Altizer, G. C. Douthitt and Pendleton, Matthews & Bell, for plaintiff in error.

Thos P. Ryan, and Hogg & Hogg, for defendant in error. Ritz, Judge:

At the time of the injury to plaintiff, to recover damages for which this suit is brought, he was engaged with others in unloading from a wagon pipe which was intended to be used in the construction of a pipe line for the defendant, extending from Clendennin, Kanawha county, to Cedarville, in Gilmer County. The injury to the plaintiff was caused by a section of the pipe being thrown from the wagon and striking him in the back, from which he claims to have sustained serious permanent injury. The accident resulted from the negligence or carelessness of his fellow servants in throwing the pipe from the wagon upon the plaintiff, but inasmuch as the defendant has not complied with the provisions of the Workmen's Compensation Law it cannot excuse itself from liability because the injury was caused by plaintiff's fellow servants, if it is otherwise liable. The plaintiff showed in support of his case that he was employed by the foreman in charge of the work of hauling and unloading the pipe; that he had only been at work about a week at the time of the injury, and at that time had not yet received any pay for his services; that after the injury he continued in...

To continue reading

Request your trial
25 practice notes
  • Cunningham v. Herbert J. Thomas Mem'l Hosp. Ass'n, No. 11–0398.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...the purpose of relieving an employing party from potential respondeat superior liability. As we stated in Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806 (1920): “[p]roving that the work was being done under a contract does not constitute the defense of independent contractor.”Zi......
  • McCoy v. Cohen, No. 12310
    • United States
    • Supreme Court of West Virginia
    • February 23, 1965
    ...118 W.Va. 637, 191 S.E. 527; Waldron v. Garland Pocahontas Coal Company, 89 W.Va. 426, 109 S.E. 729; Kirkhart v. United Fuel Gas Company, 86 W.Va. 79, 102 S.E. 806; Anderson v. Tug [149 W.Va. 211] River Coal and Coke Company, 59 W.Va. 301, 53 S.E. 713; 35 Am.Jur., Master and Servant, Sectio......
  • Mallory v. Ice & Supply Co., No. 26332.
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
    ...to prove all the facts necessary to constitute Goodman an independent contractor. Waldron v. Coal Co., 109 S.E. 729; Kirkhart v. Gas Co., 86 W. Va. 79; Wright v. Goldheim, 169 N.W. 343. (4) If it be that Goodman could be said to be an independent contractor, still defendants and each of the......
  • Spencer v. Travelers Ins. Co., No. 12229
    • United States
    • Supreme Court of West Virginia
    • December 13, 1963
    ...Contractor, page 638; 35 Am.Jur., Master and Servant, § 3; 9 M.J., Independent Contractors, § 3; Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806; Waldron v. Garland Pocahontas Coal Co., 89 W.Va. 426, 109 S.E. 729; Greaser v. Appaline Oil Company, 109 W.Va. 396, 155 S.E. 170; Craf......
  • Request a trial to view additional results
25 cases
  • Cunningham v. Herbert J. Thomas Mem'l Hosp. Ass'n, No. 11–0398.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...the purpose of relieving an employing party from potential respondeat superior liability. As we stated in Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806 (1920): “[p]roving that the work was being done under a contract does not constitute the defense of independent contractor.”Zi......
  • McCoy v. Cohen, No. 12310
    • United States
    • Supreme Court of West Virginia
    • February 23, 1965
    ...118 W.Va. 637, 191 S.E. 527; Waldron v. Garland Pocahontas Coal Company, 89 W.Va. 426, 109 S.E. 729; Kirkhart v. United Fuel Gas Company, 86 W.Va. 79, 102 S.E. 806; Anderson v. Tug [149 W.Va. 211] River Coal and Coke Company, 59 W.Va. 301, 53 S.E. 713; 35 Am.Jur., Master and Servant, Sectio......
  • Mallory v. Ice & Supply Co., No. 26332.
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
    ...to prove all the facts necessary to constitute Goodman an independent contractor. Waldron v. Coal Co., 109 S.E. 729; Kirkhart v. Gas Co., 86 W. Va. 79; Wright v. Goldheim, 169 N.W. 343. (4) If it be that Goodman could be said to be an independent contractor, still defendants and each of the......
  • Spencer v. Travelers Ins. Co., No. 12229
    • United States
    • Supreme Court of West Virginia
    • December 13, 1963
    ...Contractor, page 638; 35 Am.Jur., Master and Servant, § 3; 9 M.J., Independent Contractors, § 3; Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806; Waldron v. Garland Pocahontas Coal Co., 89 W.Va. 426, 109 S.E. 729; Greaser v. Appaline Oil Company, 109 W.Va. 396, 155 S.E. 170; Craf......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT