PAYNTER
J.
The
appellee is a corporation engaged in the business of mining
and selling coal. The intestate, H. W. Lewis, was a coal
miner. While in the employ of the appellee he received
injuries from the effects of which he died. This action was
brought to recover damages resulting from the injuries
received. Omitting formal parts, the petition reads as
follows: "(3) That in May, 1898, it had in its
employment a large number of miners and mine laborers, all of
whom were members of a secret organization called the
'Miners' Union,' and were on that account known
and designated as 'union men,' in contradistinction
to miners and mine laborers who were not members thereof, and
who were designated 'nonunion men.' About this time
these union miners became dissatisfied with the management of
the defendant's mines, or with the amount of wages they
were being by it paid for their services, and left its
employment on a strike; refusing not only to work themselves
but to permit others to work at, in, or about these mines
until their differences with the defendant corporation could
be adjusted. So openly and to such an extent did they show
their determination that no one should be employed to fill
their places in or about the mines, that they publicly and
boldly threatened to take the life of any man or men who
should come there and attempt to do any character of work for
the defendant. These threats, and the consequent danger to
any nonunion men who should attempt to work there for the
defendant, were well known to it, its superintendent and
agents. Shortly after this strike was inaugurated, the
defendant attempted to, and did, hire the services of a large
number of nonunion men, and brought them to its said mines
in order with them to carry on its business; but these men
were, with threats of violence and force, frightened from
their labor and driven from the place. These facts were, as a
matter of course, well known to and by the defendant and its
agents, as at this time the locality of the mines was under
the domination of the strikers, and men who attempted to work
or labor for the defendant were intimidated and awed into a
submission to their commands and behests. This soon left the
mines in a bad and dangerous condition, as the rising of the
waters therein, and their great need of being pumped out and
drained, was rendering them valueless and unfit for use; and
the defendant's officers and agents fully realized that
the property would soon be ruined and become a dead loss to
its owners unless hands could be procured who would do the
work so badly and seriously needed there. (4) That an agent
and officer of the defendant company fully authorized to act
and make contracts for it then approached the plaintiff's
intestate, the said H. W. Lewis, then a resident of the
county of Jefferson, in this state, and without warning him
of the trouble of the mines, of the strikes of the miners, of
their threats against any one who would come there to work,
of the consequent danger to him, which the defendant well
knew, employed him to go to the mines and work for it,
promising and agreeing to give him employment for the space
of one year. Accepting this employment at the compensation
then and there agreed upon, and wholly ignorant of any danger
or dangers incident to the work, or on account of the
strikers and their threats, his said intestate went to the
mines and began work. After a few days, during which time he
had been superintending a number of men who were draining the
mine, he was warned by a committee of the strikers that they
would not allow him to work for the defendant. These facts
and the language and the threats of the said committee his
intestate at once communicated to the defendant's
superintendent and chief officer, then at the mines, and
asked him what he must do. It was well known to the
defendant, its officer and agents, that, if this
work was stopped then, the mines would become flooded,
dangerous and unfit for use, and be thus made utterly
worthless; and thus knowing, and realizing the absolute
necessity for the continuation of this work the defendant
corporation, by and through its said superintendent and chief
officer, then and there promised, agreed, and undertook, in
consideration of said Lewis' continuing the work under
the circumstances as herein above alleged, that the said
company would hire a sufficient guard or force of men to
protect the said Lewis and all the men working under him from
any danger or trouble from the strikers; and thereupon said
Lewis, relying solely and wholly upon the defendant's
promise to protect him, proceeded again to work, and finished
his day's labor. The defendant, however, willfully,
negligently, and wantonly failed and refused to perform its
said undertaking, in this: that it did not hire a guard or
any number of men to protect the said Lewis, nor did it,
through any of its officers or agents, make any attempt to
secure the services of a guard, or in any way to protect him
from the dangers which it well knew environed him, and from
which, in consideration of his work to save its property from
ruin, it had solemnly agreed and undertook to hold him
harmless. (5) He now alleges that after the said Lewis had
finished his labor for the day, and had gone to his home, a
number of the strikers, consisting of about -- men, went to
the house where he was staying, dragged him therefrom by
force, and willfully, unlawfully, and without right or
reason, beat him on the head with stones, clubs, and loaded
sticks, by reason of which beating he was permanently
disabled and injured, and was confined to his bed for --
months, suffering all the time great bodily pain and mental
anguish, and afterwards died by reason of the wounds then and
there so by him received, and all of which these strikers
were enabled and encouraged to do on account of the
defendant's failure to furnish the guard and protect the
said Lewis, which, well knowing the urgent and crying need
therefor,...
