Rader v. County Court Of Roane County.

• Decision Date: 02 October 1923
• Docket Number: C. C. 253.
• Parties: Mirel Rader v. County Court of Roane County.
• Court: West Virginia Supreme Court

94 W.Va. 493

Mirel Rader

v.County Court of Roane County.

C. C. 253.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 1923.

Decided October 2, 1923.

1. Master and Servant County Court an "Employer.'' Within Compensation Act.

A county court is an employer within the meaning and letter of Chapter 15-P, Code; and is liable for negligent injury to its employees in the course of employment where it has failed to comply with the provisions of said chapter requiring payment by employers into the workmen's compensation fund. (p. 496).

2. Same County Court Not Employer, Within Compensation

Act, Unless it Employs\ Servants.

But a county court is not an employer as defined by the statute unless it is engaged in industry, business, or work for the carving on of which it employs servants, (p. 496).

3. Same County Court, Furnishing Road Contractors Machinery

and Laborers, Not an Employer, Within Compensation Act.

The mere fact that the defendant, a county court, is furnishing tools, machinery and laborers to road contractors engaged in the construction and repairing of a public highway, does not render it an employer under the act. (p. 496).

Case certified from Circuit Court, Roane County.

Trespass on the case by Mirel Rader against the County Court of Roane County. Demurrer to declaration sustained, and questions certified.

Affirmed.

Wm. S. Ryan and Thos. P. Ryan, for plaintiff. John W. Lance, for defendant.

Litz, Judge:

The plaintiff by this action, in trespass on the case, seeks recovery for personal injury sustained while in the defendant's employ, resulting from its alleged negligence. The demurrer to the declaration was sustained and the questions arising thereunder are certified here for review.

The declaration, containing but one count, after alleging that the plaintiff was injured while in the employ of the defendant as day laborer, "to dig, excavate and remove dirt and rock in building, repairing and constructing" a public road in Jackson county, (extending from Spencer to Billings), in attempting to crank a truck furnished him by defendant for the performance of such work, avers (by way of specification) that at the time of the injury the defendant "was assisting and helping Hot Rhodes and C. S. Meredith, doing business as Rhodes & Meredith, in performing a contract which they then had for the construction and repairing of said public road, and that for said purpose said defendant was furnishing said truck, tools, appliances and many workers, including plaintiff."

It is also charged, as constituting the alleged negligence of defendant, that the cranking apparatus of the truck was in bad repair and unsafe condition, (but ''the exact part thereof so being out of repair and damaged is to the plaintiff unknown"), and that by reason whereof when the plaintiff "turned said crank and cranked the said truck and its engine in the ordinary and customary way, the same suddenly kicked back and struck plaintiff with great force and violence before the plaintiff had sufficient time to get out of the way." There is further averment that the defendant had not contributed as an employer to the workmen's compensation fund, under Chapter 15-P of the Code.

That defendant is not liable as an employer for negligent injury to its servants in the course of their employment, is the sole ground relied on to sustain the demurrer. This conclusion rests upon the decisions that the county court is not answerable for negligence in the absence of statutory enactment fixing liability. Watkins v. County Court, 30 W. Va. 657; Corrigan v. County Court, 74 W. Va. 89; Shipley v. County Court, 72 W. Va. 658; Douglas v. County Court, 90 W. Va. 47.

The plaintiff concedes the common law rule, but points to its change by the workmen's compensation act, respecting the relation of master and servant, as therein defined.

Section 9, Chapter 15-P, Code, provides: "All persons, firms, associations and corporations regularly employing other persons for the purpose of carrying on any form of industry or business in this State, county and municipal corporations, the State of West Virginia, and all governmental agencies or departments created by it, are employers within the meaning of this act, and subject to its provisions. All persons in the service of employers as herein defined and employed by them for the purpose of carrying on. the industry, business or work in which they are engaged * * * * are employees within the meaning of this act and subject to its provisions."

Under Section 26 of this chapter, "All employers subject to this act, the State of West Virginia excepted, who shall not have elected to pay into the workmen's compensation fund the premiums provided by this act, or having so elected, shall be in default in the payment! of same, or not having otherwise complied fully with the provisions of Section 24 of this act, shall be...