Rawson v. Jones-Winifrede Coal Co.
| Decision Date | 27 October 1925 |
| Docket Number | 5300. |
| Citation | 130 S.E. 492,100 W.Va. 263 |
| Parties | RAWSON v. JONES-WINIFREDE COAL CO. |
| Court | West Virginia Supreme Court |
Submitted October 20, 1925.
Syllabus by the Court.
Where the evidence of a contract and the acts performed under it is without substantial conflict, a question of law is presented to the court, and not a question of fact to the jury, whether the relation of master and servant, or that of principal and independent contractor, exists between the parties to the contract.
An independent contractor is not an "employee" as defined in chapter 15P, § 9, Code (Workmen's Compensation Act), and he is not insurable against personal injuries to himself by that act, while carrying out his independent con tract.
In a suit by an independent contractor against the owner of the premises, for personal injuries received by the former while carrying out his independent contract on those premises, the cause of action being for negligence in not furnishing the independent contractor a safe place to work, the defendant is not precluded from his common-law defenses by the Workmen's Compensation Act.
An independent contractor, who mines coal under his contract and receives personal injuries while carrying out his contract caused by an unsafe condition in the mine, brought about solely by his own acts, cannot recover for those injuries against the owner of the mine.
Error to Circuit Court, Clay County.
Action by G. C. Rawson against the Jones-Winifrede Coal Company. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and new trial awarded.
O. L Hall and Eakle & Eakle, all of Clay, for plaintiff in error.
J. E Springston, of Charleston, for defendant in error.
LIVELY P.
G. C. Rawson, plaintiff below, recovered a verdict and judgment of $1,000 against Jones-Winifrede Coal Company (hereinafter called the coal company), for personal injuries received in defendant's mine while working therein under a contract, and the coal company prosecutes error to this court.
The negligence charged to the coal company is that it did not provide plaintiff a safe place to work, and did not employ a mine foreman to inspect the mining operation and keep it free from hazard to those employed therein. It is charged and admitted that defendant coal company did not contribute to the workmen's compensation fund at the time of the injury.
The defense to the action is that plaintiff was not an employee of defendant; that the relation of master and servant did not exist; that he was an independent contractor; that the injury was the result of plaintiff's method of performing the contract, and no negligence is imputable to defendant.
It appears from the evidence that the coal company had ceased to operate the mine. The cost of production and marketing was greater than the market price of coal; hence the mine was shut down. The miners were out of work and had begun to "scatter." A minimum charge for electrical power amounting to $262.50 was accruing monthly against the coal company, whether the power was or was not used. While this condition of idleness was existent, a verbal contract was entered into between plaintiff, George and Andy O'Dell, and Danny Igo on the one hand, and W. S. Jones, defendant's superintendent, on the other, by which plaintiff and his cocontractors were to mine and deliver coal from the mine at the tipple where it was received by defendant, and for which it was to pay $1.25 for every ton so delivered. The equipment on hand and for use in the mine, such as machinery, power, ponies, mine rails, and mine props, was turned over to plaintiff and his associates. Nothing was said as to when the contract should begin or end. There is no substantial conflict as to the terms of the contract, except Jones says it was agreed that plaintiffs and his associates should assume all responsibility in getting out the coal, while plaintiff and his cocontractors deny any such express stipulation. Defendant never exercised any control over the work except to see that the mine was "kept on centers," and see that "they didn't ruin our acreage." There were no other workmen in the mine except plaintiff and his associate contractors, and two men employed by them, whom they paid out of the money derived from their contract. They began mining the coal on the day following the making of the contract. Danny Igo worked one day and then quit, giving as a reason therefor that he did not think it was safe to work in the mine unless the draw slate was removed as the coal was taken out.
The main entry at the time of the contract had been driven in about 100 feet, and a side entry leading off from the main entry had been started and driven about 10 or 12 feet when the mine was closed down. The draw slate (the slate between the coal and the rock roof) was thick and heavy, and the coal company had always taken the slate down and removed it from the mine. None was left in the main entry, and it is reasonably clear that none was left overhead in the side entry or room which had been driven 10 or 12 feet from the main entry. Plaintiff had served in the capacity of mine foreman just before the mine shut down, and had required the draw slate to be taken down and removed. He is not sure that such were his instructions from Jones, the superintendent, but he testified that he had done it as mine foreman. Plaintiff and his associates began at the side entry, and worked for about 30 days (except Danny Igo, who quit after the first day's work), and had driven in about 35 or 40 feet further, when the accident occurred from which plaintiff suffered his injuries. He was operating the cutting machine, and was standing 8 or 9 feet from the face of the coal when the draw slate overhead fell and injured him. It appears that the contractors did not take down the draw slate as they took out the coal, but attempted to keep it in place by mine props. It was for this reason that Danny Igo quit. He regarded it as dangerous. Plaintiff does not give any reason for changing his former policy of removing the slate while he acted as mine foreman to that of leaving it overhead while he worked as contractor. He does say that more coal could be mined by propping the slate instead of removing it. Andy O'Dell, a cocontractor and a witness for the plaintiff, says he supposed the reason for its nonremoval was because it would be cheaper to mine the coal without taking the draw slate down.
The question of primary importance is whether or not the status of the plaintiff at the time he received his injuries, was that of an independent contractor, or that of an employee of the defendant. The answer to this question depends in a large measure upon a consideration of the contract, the nature of the business, and the surrounding circumstances. Generally, where one has contracted with a competent person, exercising an independent employment, to do work not in itself dangerous to others, according to the contractor's own method, and without his being subject to control in an important particular, except as to the result of his work, the person so performing the work assumes the status of an independent contractor. Carrico v. West Virginia C. & P. Ry. Co., 39 W.Va. 86, 19 S.E. 571, 24 L. R. A. 50; A. L. Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806; Waldron v. Coal Co., 89 W.Va. 426, 109 S.E. 729; Smith v. Coal Co., 92 W.Va. 253, 115 S.E. 477.
The plaintiff relies upon the case of Waldron v. Coal Co., supra, as deciding the question, and quotes from that case as follows:
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