Richards v. Ironworks

Decision Date20 December 1904
Citation56 W.Va. 610,49 S.E. 437
CourtWest Virginia Supreme Court
PartiesRICHARDS v. RIVERSIDE IRONWORKS.

ADMINISTRATION — PERSONAL ESTATE—CLAIM FOR WRONGFUL DEATH—PLEADING—SPECIAL PLEAS — ACTION BY ADMINISTRATOR—SECURITY FOB COSTS—SPECIAL INTERROGATORIES.

1. C. was employed as a laborer by the defendant at its manufacturing plant in 0. county, W. Va. While engaged, under direction of defendant's labor foreman, in tearing down a scaffold which had been erected by defendant and belonged to it, he was injured by the falling of one of the platforms of the scaffold, and from the effect of his injuries died in Bellaire, in the state of Ohio, where he resided. He having died intestate, the county court of Ohio county committed his estate to R., sheriff of said county, to be by him administered. R., as administrator of C, instituted this action in O. county. At the time of his death, C. had no mansion house, known place of residence, any real estate, or any property situate in the state of West Virginia, and since his death no property belonging to him or to his estate, except the claim for damages sued for in this action, has come into this state.

Held, that said claim against defendant in this action for damages for the death of plaintiff's intestate must be deemed property, within the meaning of our statute; that the county court of O. county had authority to commit the estate of C. to the sheriff of that county, to be by him administered; and that said sheriff, as administrator of C., had the right to institute and prosecute this action.¶ 1. See Costs. vol. 13, Cent. Dig. § 456.

2. Special pleas which aver matters only that may be given in evidence under the general issue should be rejected.

3. A resident administrator who brings an action in a court of this state to recover damages under our statute for the death of his decedent, who was a nonresident, should not be required to give security for costs.

4. Where, in an action for fatal injury, it becomes a question whether death resulted from the injury, or from disease with which it had become involved, the party causing the injury cannot escape full liability without showing that death must have resulted if the injury had not been done.

5. If the master cause to be constructed a scaffold in an unworkmanlike manner, and use therein defective or unsound materials, all of which render the scaffold dangerous and insecure, and the master or his foreman in charge of the work knew it, or ought to have had knowledge of it by the exercise of reasonable attention, care, and diligence, but direct such work to be done and that character of materials to be used, he is liable to his workman, who, being himself in the exercise of reasonable care, is injured thereby while working thereon, unless the workman, by the use of ordinary care, ought to have detected the unworkmanlike construction of, and the defective or unsound materials used in, the scaffold.

6. Point 4 of syllabus in Andrews v. Mundy, 36 W. Va. 22, 14 S. E. 414, approved and applied.

7. When a servant enters into the employment of a master, he assumes all the ordinary risks incident to the employment, whether the employment be dangerous or otherwise.

(Syllabus by the Court.)

Appeal from Circuit Court, Ohio County; Thayer Melvin, Judge.

Action by H. C. Richards, administrator, against the Riverside Ironworks. Judgment for plaintiff. Defendant brings error. Reversed.

Wm. H. Hearne, for plaintiff in error.

J. A. Howard and T. S. Riley, for defendant in error.

MILLER, J. John W. Campbell, the plaintiff's intestate, was before and on the 20th day of January, 1899, and also on the 16th day of February, 1899, the time of his death, a resident of Bellaire, in the state of Ohio. For some time previous to the first-mentioned date he had been employed as a general laborer by the defendant, the Riverside Ironworks, a corporation, at its manufacturing plant in Benwood, Ohio county, W. Va. A short time before January 20, 1899, a wooden scaffold, consisting of three platforms, had been built by defendant to enable its bricklayers to work therefrom in rebuilding and painting for it a brick wall at one end of its stockhouse. The bricklayers worked on the scaffold with brick and other materials, and completed the wall after several days' labor thereon. Intestate, with other laborers, worked on the scaffold, attending the bricklayers, but did not assist in the construction of it. After the work on the brick wall had been completed, Campbell and Barkhurst, another laborer, were directed by one Lowe, a labor foreman then in the employ of defendant, to tear down the scaffold. This Campbell and Barkhurst proceeded to do, and, while so engaged, the scaffold fell. They were thrown to the ground. Campbell was injured on the head and elsewhere about his body, and from the effects of his injuries so received he died at his home, in Bellaire, Ohio, at the time above stated.

On the 15th day of May, 1899, the county court of Ohio county committed the estate of said Campbell, deceased, to H. C. Richards, then sheriff of that county, to be administered. On the 28th day of June next thereafter, Richards, as administrator, commenced this action, in which he claimed $10,000 damages from the defendant on account of the death of his intestate, resulting from said injuries occasioned as aforesaid. The defendant interposed its plea to the jurisdiction of the court in the action, and therein denies the right of the plaintiff to maintain his said action, because it says that neither the said county court had jurisdiction to socommit the estate of said John W. Campbell, deceased, to said Richards to be administered, nor had said Richards authority by reason of said action of the county court to Institute or prosecute this action against defendant, for the following reasons, to wit: That said John W. Campbell, who was at the time of his death a nonresident of the state of West Virginia, died intestate in Belmont county, in the state of Ohio, where he then resided, and where his family still reside; that at the time of his death he had no mansion house or known place of residence, or any real estate or any property of any kind, situate in the state of West Virginia, nor since then has he had any property in the last-mentioned state, unless the claim sued for in the said action can be regarded as property.

A demurrer by the plaintiff to this plea was sustained by the court. This ruling of the court involves a construction of our statute under which the action is brought and prosecuted. Section 5 of chapter 103 of the Code of 1899 provides that: "Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter." The statute gives the right to institute and prosecute the suit. But for our statute, the action could not be maintained. The Supreme Court of Indiana, in Jeffersonville R. Co. v. Swayne's Adm'r, 26 Ind. 477, 484, in discussing a similar statute, says: "The action given by the statute is for causing the death, by a wrongful act or omission, in a case where the deceased might have maintained an action, had he lived, for an injury by the act or omission. The right of compensation for the bodily injury of the deceased, which died with him, remains extinct. The right of action created by the statute is founded on a new grievance, namely, causing the death, and is for the injury sustained thereby by the widow and children or next of kin of the deceased, for the damages must inure to their exclusive benefit. They are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund, when recovered, is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin. The action is for their exclusive benefit, and, if no such person existed, it could not be maintained. Indianapolis, etc., R. Co. v. Keely's Adm'r, 23 Ind 133; Lucus v. New York C. R. Co., 21 Barb. 245; Chicago, etc., R. Co. v. Morris, 26 Ill. 400; State v. Gilmore, 24 N. H. 461; Johnston v. Cleveland, etc., R. Co., 7 Ohio St. 336, 70 Am. Dec. 75; Commonwealth v. Eastern R. Co., 5 Gray, 473."

Section 6 declares that: "Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action, the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased." Section 4 of chapter 85 provides that, "in case of a person dying intestate, the jurisdiction to hear and determine the right of administration of his estate shall be in the court which would have jurisdiction as to the probate of his will, if there was a will." Section 22 of chapter 77, Code 1899, reads as follows: "The county court shall have power and jurisdiction to hear proof of, and admit wills to probate as follows: First. In the county wherein the deceased, at the time of his death had a mansion-house or known place of residence; or, second, if he had no such house or place of residence, then in the county wherein any real estate devised thereby is situated; or, third, if...

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