Rhodes v. J.B.B. Coal Co.
| Citation | 90 S.E. 796,79 W.Va. 71 |
| Decision Date | 24 October 1916 |
| Docket Number | 3193. |
| Parties | RHODES v. J. B. B. COAL CO. |
| Court | Supreme Court of West Virginia |
Submitted October 10, 1916.
Rehearing Denied Dec. 13, 1916.
Syllabus by the Court.
The word "mine" contained in prior acts, but omitted from sections 1 and 2, chapter 60, Acts 1911, being sections 71 and 72, chapter 15H (secs. 530, 531), Code 1913, chapter 11, Acts 1887, chapter 15, Acts 1891, and chapter 75 Acts 1905, as one of the places where minors of the prohibited ages are not permitted to be employed, is not covered by any of the other places enumerated in the act and cannot be restored by judicial construction.
When a statute is so revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled.
Another pertinent rule of construction is that a statute in derogation of the common law, which imposes restrictions upon trade or common occupation, should be construed strictly.
Sections 71 and 72, chapter 15H, Code 1913, prohibiting the employment of a minor under fourteen years of age, impliedly permits the employment of minors over that age, and their employment being lawful, section 9, c. 10, Acts 1913, serial section 665, Code 1913, c. 15P, § 9, properly construed, comprehends them in the definition of employees protected and bound by the provisions of said act known as the Workmen's Compensation Act.
Said act establishing the Workmen's Compensation Fund, by the levying of premiums upon employers and employees, being a police regulation, is not invalid as violative of the due process clause, or the equal protection clause, of the state and federal constitutions.
The evidence in this case shows compliance by defendant with the provisions of said act respecting the posting of notices to its employees of its election to come under said act.
The general rule is that matters of defense should not be anticipated by the plaintiff, but that all such matters should be shown by the opposite party in his pleadings. And in actions on the case the plea of not guilty operates as a denial only of the breach of duty or wrongful acts alleged to have been committed by defendant, and no other defense than such denial is admissible under that plea.
Error to Circuit Court, McDowell County.
Action by Frank Rhodes, an infant, etc., against the J. B. B. Coal Company. Judgment for defendant awarding a new trial after verdict for plaintiff, and plaintiff brings error. Affirmed.
Stokes & Sale, of Welch, and Rose & Pope, of Williamsburg, Ky. for plaintiff in error.
Anderson Strother, Hughes & Curd, of Welch, for defendant in error.
From the judgment below setting aside the verdict and awarding defendant a new trial the plaintiff obtained the present writ of error.
The action is to recover damages for personal injuries sustained by plaintiff, an infant over fourteen, but under sixteen years of age, in defendant's coal mine. The declaration is in three counts, the demurrer to which and to each count thereof was overruled; and the defendant's two special pleas tendered were on plaintiff's objection rejected.
Recovery is sought upon plaintiff's supposed common law right of action for said injuries, due to defendant's alleged negligence, contributing thereto. Each count avers the failure of the defendant to elect to pay the required premium into what is known as the Workmen's Compensation Fund and to post in conspicuous places typewritten or printed notices thereof about its place or places of business, as required by the statute, section 23, chapter 15P (sec. 679), Code 1913, in force at the time of plaintiff's employment and when his injuries were sustained. These counts are also predicated on the theory that a coal mine is a "factory, mill, workshop or manufacturing establishment" with in the meaning of sections 71 and 72, chapter 15H, Code 1913, in force at the same time, section 71, prohibiting the employment of a child under fourteen years in any one of the enumerated places at any time, and section 72, prohibiting the employment therein of a child under sixteen years of age, except by permission as provided therein, and alleging failure of defendant to comply with the provision of the statute in relation thereto.
The first count is predicated on the theory of the unlawful employment of plaintiff, and that such employment was the proximate cause of plaintiff's injuries, entitling him to recover damages therefor; the second count is based on the theory that plaintiff was an immature infant, inexperienced in the work he was employed to do, and defendant's failure to instruct and warn him of the dangers incident to his employment, resulting in his injuries; the third count alleges negligence in failing to use due and proper care and caution to provide plaintiff with a reasonably safe place to work, a safe track, and safe cars and appliances used in connection therewith, resulting in his injuries.
Respecting the two special pleas tendered by defendant, the first pleaded in defense its compliance with the Workmen's Compensation Act, chapter 15P, Code 1913, by paying the premium and posting notice of its election to come under said act as provided thereby; the second, plaintiff's application to the Commission and the award to and acceptance by him of the benefits provided by said act, estopping him from maintaining any action against defendant for his alleged injuries.
The record shows that the case has been twice tried. On the first trial the jury disagreed and was discharged. On the second trial the jury returned a verdict for plaintiff on the issues joined for ten thousand dollars, which the court, on defendant's motion, set aside and awarded it a new trial, but refused on its motion to enter judgment for it non obstante veredicto. This judgment was at the same term of the court, on plaintiff's motion, set aside, and defendant's motion for a new trial and judgment re-considered; and later the judgment now complained of was pronounced, sustaining defendant's motion to set aside the verdict, the special finding of the jury, and awarding it a new trial.
It nowhere appears from the record upon what ground or grounds the court below based the judgment complained of. We are of opinion, however, that the numerous questions argued here may all be solved, with one exception, by a proper construction of our statute, sections 71 and 72, chapter 15H, Code 1913. The heading preceding these and sections 73 and 74 (secs. 532, 533) is, "Employment of Minors in Mines, Factories, etc." But this heading is no part of the statute, and as amended by chapter 60, Acts 1911, is not descriptive of the provisions of the act, unless, as requested to do by counsel for plaintiff, we read into or so interpret the Act of 1911, as to include "mine," or mine is covered by some of the other places specifically mentioned in the act. In the original act, chapter 11, Acts 1887, composed of but two sections, and in chapter 15, Acts 1891, and chapter 75, Acts 1905, amending the original act, "mine" was included in the place or places where minors of the prohibited ages were not permitted to be employed. But in the last act, chapter 60, Acts 1911, the word "mine" was omitted, not only from section 71, but from section 72 also, being sections 1 and 2, of the Act of 1911. The original act of 1887, as well as the several subsequent acts, related to the employment of minors generally, and covered mines. But by chapter 78, Acts 1907, an entirely new and comprehensive act, the "Department of Mines" was created, and the whole subject of the conduct of mines, and who should be employed therein, was comprehensively dealt with, and section 17 thereof, the only provision relating to the subject, provided that:
"No boy under fourteen years of age, nor female person of any age shall be permitted to work in any coal mine," etc.
This law relating to mines so remained until chapter 10, Acts 1915, was enacted, which amended and re-enacted said chapter 78, of the Acts of 1907. Sections 32 and 33 of that act, passed subsequently to the time of the employment and the injuries complained of in this case, are sections 24 and 25, chapter 15H, Barnes' Code 1916, but they can have no bearing upon the question presented here. So we think it quite apparent that after the enactment of chapter 78, Acts 1907, which dealt with the whole subject of operating mines, the Legislature must have acted advisedly and deliberately in dropping the word "mine" out of sections 1 and 2, of chapter 60, Acts 1911, and that it was not intended to cover mines in that general statute, for that subject had been covered by the particular statute pertaining to mines, and as section 17, of chapter 78, Acts 1907, same as section 26, chapter 15H (sec. 485) Code 1913, did not prohibit the employment of boys over fourteen years to work in mines, but impliedly permitted their employment, we ought not now read into the statute from which it was omitted the word "mine," nor by interpretation say, that either of the other places enumerated covers mines, as workshop, manufactory, etc.
It seems to be a well settled rule of construction that when a statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. The Supreme Court of Massachusetts, in Ellis v. Paige, 1 Pick. (Mass.) 43, 45, says:
"To hold otherwise would be to impute to the Legislature gross carelessness or ignorance; which is altogether inadmissible."
This rule has been fully recognized and stated in its fullness by a standard writer on statutory construction, 1 Lewis' Sutherland on Statutory...
To continue reading
Request your trial