Roberts v. United Fuel Gas Co

• Citation: 99 S.E. 549
• Decision Date: 27 May 1919
• Docket Number: (No. 3668.)
• Parties: ROBERTS v. UNITED FUEL GAS CO.
• Court: Supreme Court of West Virginia

99 S.E. 549

ROBERTS

v.UNITED FUEL GAS CO.

(No. 3668.)

Supreme Court of Appeals of West Virginia.

May 27, 1919.

(Syllabus by the Court.)

Error to Circuit Court, Roane County.

Action by Troy Roberts, by next friend, against the United Fuel Gas Company. Judgment for plaintiff, and defendant brings error. Affirmed.

R. G. Altizer, of Charleston, C. C. Douthitt. of Huntington, and Pendleton, Mathews & Bell, all of Spencer, for plaintiff in error.

Thos. P. Ryan, of Spencer, and Chas. E. Hogg, of Point Pleasant, for defendant in error.

WILLIAMS, J. Plaintiff, a minor 19 years of age, suing by next friend for damages on account of a personal injury, caused by the alleged negligence of a fellow servant, recovered judgment against the defendant, by whom he was employed as a common laborer, and it is prosecuting this writ of error.

Defendant is a corporation engaged in producing natural gas and transporting it through pipe lines to its customers both within and without the state, and is therefore engaged in both intrastate and interstate commerce. It does not maintain separate pipe lines for the two kinds of commerce, but transports the gas for both domestic and foreign consumption through the same lines to certain points, where so much as is intended for use within the state is carried from the main line, by means of lateral lines, to the places of consumption. Its commercial business is therefore so mingled as not to be clearly distinguishable, the domestic from the foreign. It employed plaintiff about the digging of a ditch about 2 1/2 or 3 miles in length, preparatory to laying a pipe line from its compressor station at Clarence, to connect with the main line leading from that point to Ravenswood on the Ohio river. This new line was parallel to the main line already existing and was intended to increase defendant's carrying capacity between the same points. The main line supplied gas to the towns of Ripley and Ravenswood in West Virginia, and what was not consumed by these towns was turned over at Ravenswood to the Ohio Fuel Supply Company for consumption in Ohio, and was measured in the line as it flowed through the station. Defendant ceased to pay its quota or assessment into the Workmen's Compensation Fund in April, 1915, and was in default at the time of plaintiff's injury which occurred on the 6th of the following August.

Plaintiff's employment required him to gather the tools used by the workmen in the ditch when they became dull, carry them to the blacksmith shop for repair, and redistribute them along the ditch after they were sharpened. On the day of his injury he took some tools to the shop and was watching the blacksmith and his helper while they were sharpening a drill. They were about to cut off the sharp corners of a drill with a cold chisel and sledgehammer, the drill and chisel being held in place on the anvil by the blacksmith, and his helper striking the chisel with the hammer, and the blacksmith told plaintiff to get back out of the way, that a piece of steel might fly off and strike him in the eye. Plaintiff says he immediately started to get out of the way, and, before he had time to do so, the helper struck the chisel an unusually hard blow, causing a small bit of hot steel to fly off from the drill and strike him in the eye, lacerating the ball so severely that it becamenecessary for him to go to a hospital and have his eye removed, which he did.

The first error defendant assigns is the overruling of its demurrer to plaintiff's first and second amended declarations. Its counsel insist that the original declaration avers plaintiff's injury was received while he was working on a pipe line which was used in both interstate and intrastate commerce, and because the two were inseparable, stated no cause of action; defendant in such case not being liable for an injury caused by the negligence of a fellow servant, citing Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150, and Suttle v. Hope Natural Gas Co., 97 S. E. 429; whereas, in his two amended declarations he averred his injury was received while he was engaged in work for defendant, which was wholly intrastate, thus, as counsel insist, departing from the original cause of action, citing Findley v. Coal & Coke Ry. Co., 76 W. Va. 747, 87 S. E. 198. Each of the amended declarations, which are not materially different in substance, states a good cause of action, and the demurrers thereto were properly overruled. Objection on the ground that the amendment constituted a departure from the original cause of action, or because it introduced a new and different cause of action, was not made, and the question does not arise on demurrer. 31 Cyc. 463. Where plaintiff files an amended declaration, making no reference to the original, the original is considered as abandoned. Bartley v. Western Maryland Ry. Co., 81 W. Va. 795, 95 S. E. 443; Shafer v. Security Trust Co., 82 W. Va. 618, 97 S. E. 290; Roderick v. Railway Co., 7 W. Va. 54. Hence the demurrer goes only to the sufficiency of the averments in the amended declaration. Railway Co. v. Sutherland, 105 Va. 545, 54 S. E. 465. The question should be raised by objecting to the filing of the amended declaration or by motion to exclude it. Authorities supra. But no objection was here made. The court had overruled the demurrer to the original declaration and permitted plaintiff, on his own motion, to amend, as he had a right to do, and the cause was remanded to rules for that purpose. The amended declaration incorporates no part of the original, nor makes any reference to it; hence a demurrer could not raise the question. However, there is no departure; the amendment preserves the identity of the original cause of action. It shows plaintiff was injured while engaged in the same service, in the same manner and on the same occasion as alleged in the original declaration, the only difference being that the amended declaration states with greater particularity the character of the work defendant was then doing and the nature of plaintiff's employment therein; and in both the original and amended declarations the cause of action averred arises under the laws of the state of West Virginia. Hence, the case is unlike Findley v. Coal & Coke Ry. Co., supra, where the plaintiff brought his action under the state law, and, after the evidence introduced at the trial had so far developed the facts as to render it apparent that his right of action was determinable according to the federal Employers' Liability Act, sought to amend his declaration in order to make it conform to the requirements of that act, and the amendment stated a different ground or basis of action, and was therefore an averment of an entirely new cause of action. But here there is no such departure, and the amendment was proper.

The next complaint is that the court improperly overruled defendant's motion to discharge the jury from further considering the case, on account of certain improper remarks made in their presence and hearing by one of counsel for plaintiff, after they had been impaneled and sworn, which, it is claimed, were evidently intended to prejudice the minds of the jury against defendant and prevent a fair and impartial verdict. In the progress of the trial Thomas P. Ryan, one of plaintiff's counsel, arose and in the presence and hearing of the jury said:

"I want to call the court's attention to the fact that I am just informed that an employe of the United Fuel Gas Company, the defendant in this suit, has a list of jurors at this time, and has been insisting on their going to his home, and wanting them to say what they think of the United Fuel Gas Company, and what they think of the case now on trial; and this is not all, there are other things being done...