Louis v. Smith-McCormick Const. Co.
| Decision Date | 03 April 1917 |
| Docket Number | 3039. |
| Parties | LOUIS v. SMITH-MCCORMICK CONST. CO. |
| Court | West Virginia Supreme Court |
Submitted March 20, 1917.
Syllabus by the Court.
A declaration, claiming damages for an injury to a servant alleged to have been occasioned by the negligence of the master, and stating facts showing the employer belonged to the class of persons, firms, and corporations contemplated by chapter 10, Acts 1913 (Code 1913, c. 15P [secs. 657-711]) known as the Workmen's Compensation Fund Act, purports to set forth a cause of action arising under said statute notwithstanding the lack of an allegation specifically invoking it.
To make out a cause of action under said statute, the declaration must allege entire failure of the employer to take the benefit of the statute, or failure to comply with one or more of the conditions with which he is required to comply in order to obtain the benefit thereof.
Though a master fails to take the benefit of said statute, he is not liable for an injury incurred by a servant in the course of his employment, in the absence of negligence on the part of the former. The servant assumes the risks incident to his employment, other than those occasioned by the master's negligence, notwithstanding the statute abolished the common-law defense of assumption of risk in such cases.
A declaration, alleging injury to a servant, in an employment contemplated by said statute, by means of an unguarded hole in a high platform, within six inches of which it was necessary for him to go in the discharge of his duties on such platform, and, further, that the injury was caused by negligence and omission of duty on the part of the master sufficiently charges negligence, although the hole is shown to have been a useful part of the structure or plant and its existence well known to the servant.
An allegation that an act which may have been done either with or without negligence, according to the circumstances to be revealed by the evidence, was done negligently, is one of fact.
Error to Circuit Court, Morgan County.
Action by Pete Louis against the Smith-McCormick Construction Company. Judgment for defendant on sustaining the demurrer to the petition, and plaintiff brings error. Reversed, demurrer overruled, and case remanded.
W. H. Griffith, of Keyser, and Allen B. Noll, of Martinsburg, for plaintiff in error.
Brown & Brown, of Charlestown, and Steptoe & Johnson, of Clarksburg, for defendant in error.
This writ of error brings up for review the trial court's rulings upon the legal sufficiency of an original and an amended declaration for damages for a personal injury, sustained by an employé, demurrers to both having been sustained and the action dismissed.
A threshhold inquiry is the character of the liability the pleadings in question seek to enforce. A declaration for common-law liability differs in its requirements from one for a statutory liability. The enactment of the Workmen's Compensation Act applicable only to certain classes of employers subjects them to liability for personal injuries to employés negligently inflicted, on principles radically different from the common-law principles governing such liability. It expressly bars the common-law defenses known as fellow servantcy, assumption of risk, and contributory negligence. All employers except those falling within the scope of that statute may still rely upon such defenses.
Practically, if not quite, all persons, firms, and corporations employing labor in industrial enterprises are subject to the operation of the act, and, though the declaration does not specifically invoke its terms or protection, it discloses a status or relation which brings the parties within its terms and provisions. Both the original and amended declarations say the defendant was, at the time of the alleged injury, a corporation engaged in construction work for the Baltimore & Ohio Railroad Company in this state, consisting of improvement of its roadbed in respect of width and alignment, in the county of Morgan and elsewhere, and was using, in the prosecution of the work, a platform 33 feet wide and 28 1/2 feet high, under which the trains passed and on which there were two hoisting engines and two derricks, and that, while the plaintiff was employed by the defendant and working on said platform, he fell through an open space of considerable dimensions, in the platform, made for the purpose of enabling the operator of one of the derricks to see when the concrete buckets reached the proper places for dumping, and so located that it was necessary for the plaintiff to pass it frequently in discharging his duties. The injury complained of occurred in May, 1914, while Workmen's Compensation Fund Act of 1913, c. 10, Acts of 1913, was in effect. Section 9 of that act embraced "all persons, firms and corporations regularly employing other persons for profit, or for the purpose of carrying on any form of industry in the state of West Virginia," and all forms of industrial service except domestic and agricultural. The business set forth in the declaration is not one of those excepted, wherefore it must be within the requirements of the act, one of which is that a person, firm, or corporation regularly employing other persons therein must either contribute to the compensation fund and give notice of the fact, or lose the advantage of the common-law defenses hereinbefore mentioned. Neither declaration charges regular employment in terms, but the facts averred clearly indicate it. Both say the defendant was engaged in the work described, under a contract with the railroad company therefor, "in and through said Morgan county and elsewhere." Regular employment of servants is a necessary element or factor in the prosecution of such work, and the plaintiff's employment "to wash and clean the boilers to the engines which run the hoisters or derricks on said traveler" is averred.
Invocation of the statute in terms is not necessary. Allegation of a state of facts making it applicable suffices. It has been very logically and properly so held by the federal Supreme Court in its application of the federal Employers' Liability Act. Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 124. The court's judicial knowledge of the statute dispenses with necessity of allegation thereof. Findley v. Railway Co., 76...
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