Mcmilan v. Middle States Coal & Coke Co

Decision Date12 March 1907
CourtWest Virginia Supreme Court
PartiesMcMILAN v. MIDDLE STATES COAL & COKE CO.

On Rehearing, May 8, 1907.

1. Master and Servant—Mine Boss—Negligence—Liability of Master.

A mine boss appointed pursuant to statute is not, merely from his position as such, the servant of the coal mine owner outside his duties specified in the statute, and such owner is not responsible for his orders to servants of such owner, or his negligence resulting in injury to them.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 290.]

2. Same.

To bind a master for damage to his servant coming from the order or direction of an employe, it must appear that the person giving such order or direction had authority from the master to give it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 290.]

(Syllabus by the Court.)

Appeal from Circuit Court, McDowell County.

Action by John McMillan against the Middle States Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Reversed.

Henritze & Henritze, for plaintiff in error.

J. Graham Sale, for defendant in error.

BRANNON, J. John McMillan, an employe in the coal mine of Middle States Coal & Coke Company, received a great personal injury from explosion of dynamite caps used in shooting down coal in that mine, and in an action against the company he recovered a verdict and judgment for $4,000, and the company brought the case to this court.

The defendant moved the court to strike out the plaintiff's evidence and direct a verdict for defendant, but the court refused to do so. The defendant gave no evidence at all. The only evidence for the plaintiff was given by himself. This motion to strike out seems to involve all that need be discussed. The plaintiff states that he was employed to load coal in cars in the mine, and that he was working with an Italian, who used dynamite in shooting down the coal, and that he (the plaintiff) had nothing to do with shooting down the coal, or in using the dynamite, and that he had no experience in the use of dynamite, and knew nothing of its dangerous properties. The mine boss directed the plaintiff to go to a box and get some dynamite caps and take them to the Italian, and under such direction he went to the box and searched for the caps in it. He took up some of the caps in his hand, and was taking them out of the box, and from some cause or other they exploded and hurt him. The plaintiff claims that he knew nothing of the dangerous property of dynamite, and that, therefore, the company should have warned him of the danger, and should have given him instruc tions how to handle it, but that the mine boss failed entirely to do so. The defendant claims that before it could be called on to warn and instruct it must be shown that the company or its officer knew of McMillan's ignorance of the dangers of dynamite, and it is not shown. To this the plaintiff would reply that McMillan was taken from his usual line of labor, loading coal, to another and different and more dangerous line, and that by the law that fact dispenses with proof that the company knew of McMillan's ignorance of dynamite. It seems to me that we need not discuss those questions.

The first question is: Who gave the order to McMillan to get the dynamite caps? The mine boss. Not a bit of authority in him to so order McMillan is shown. It was not within his statute duties. In fact, it is not shown what was his authority, or that the company ever gave him any authority. The evidence simply calls him a "bank boss." We suppose that he is a mine boss appointed by the company under the mandate of the statute in the Code (Ed. 1899) appendix, p. 1052 [Ann. Code 1906, § 410]. That appointment did not give him authority to order McMillan to get the caps. His act would not bind the company. Assume that McMillan was working outside of the line of labor for which he was employed, and sent by the mine boss to a new, a different, a dangerous service, ' still it must appear that the order to get the dynamite was the company's order. "Where the injury was received by the servant while doing work outside the scope of his employment, it often becomes a material question whether he was acting under proper authority; for it is clear, upon general principles, that negligence cannot be predicated of the master's omission to instruct a servant as to work which he was neither expected nor ordered to do. * * * As, in the case of an order given by a superior employe in respect to matters within the scope of the original employment of the injured servant, the master is not bound by an order of the kind considered in the present chapter, unless it was one which the directing employe had authority to give. Where the servant, in doing work outside the scope of his employment, was acting without proper authority, it Is clear that the failure to give him instructions cannot be imputed to the master as negligence." 1 Labatt, Master & Servant, §§ 240, 457. "The mere assumption of an employe of the power to control his fellows,, without a delegation of such power by the employer, will never render the employer liable for the orders of such subordinate, and, if an employe sees fit voluntarily to recognize such self-constituted authority, he assumes the risk of obedience, or should look to such employe for redress." White on Personal Injuries, § 222. Thus we see that one giving orders must have authority from the master. We held in Williams v. Thacker Coal Co., 44 W. Va. 599, 30 S. E. 107, 40 L. R. A. 812, that a mine boss is a fellow servant with the other employes, and that, when the coal operator has complied with the statute by making a fit appointment, its duty is at an end, and he is not responsible for damages resulting from his negligence. It has been held elsewhere that the coal operator is not responsible even for those acts which fall within the scope of the duties of the mine boss, though resulting from his negligence. Waddell v. Simoson, 112 Pa. 567, 4 Atl. 725; Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Delaware Canal Co. v. Carroll, 89 Pa. 374; Lineoski v. Susquehanna Coal Co., 157 Pa. 153, 27 Atl. 577; Reese v. Biddle, 112 Pa. 72, 3 Atl. 813. These cases are found in 2 Labatt, Master & Servant, note "o, " p. 1451.

But, now, with special eye to the question whether the coal...

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