Superior Elkhorn Coal Co. v. Allen
| Decision Date | 27 March 1931 |
| Citation | 238 Ky. 280,37 S.W.2d 52 |
| Parties | SUPERIOR ELKHORN COAL CO. v. ALLEN et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Floyd County.
Action by Will Allen and others against the Superior Elkhorn Coal Company. Judgment for plaintiffs, and defendant appeals.
Reversed and remanded.
Vinson & Miller, of Ashland, for appellant.
James & Hobson, of Prestonsburg, for appellees.
The Superior Elkhorn Coal Company was the owner of a coal mine located near Bosco, on Right Beaver creek, in Floyd county. R. D. Clere was in charge of its mine during the time the transactions involved in this action occurred. In September 1927, he entered into a contract with Gearheart, Allen, and Allen by which it was agreed that the Superior Elkhorn Coal Company would furnish fuse, powder, dynamite caps, picks, and shovels and all other necessary mining supplies and pay to Gearheart, Allen, and Allen $1,15 and $1.20 per ton for mining coal. The wages of their employees were to be paid out of this price per ton by the Superior Elkhorn Coal Company and deducted from the agreed price per ton of the coal, in the settlement between it and Gearheart, Allen, and Allen.
By a mutual agreement, later entered into, the price it was to pay them was increased to $1.20 per ton. Gearheart, Allen, and Allen, in pursuance to this arrangement, employed their miners, began, and continued, to mine coal until, by the contract price, the tonnage amounted to $1,614.13. The company failing to pay them, this action, in equity, was instituted in their names and in the names of the miners so employed and used by them in mining this tonnage, against the Superior Elkhorn Coal Company and the Lackey Mining Company.
In their petition, they allege that they and their miners were the employees of the Superior Elkhorn Coal Company, working for wages, and that at its special instance and request they performed work and labor for it in the mining of its coal, and for which it agreed to pay them, but failed to do so. They allege that defendant had ceased operation of its mine within sixty days, their wages were earned within six months, next before the commencement of this action. The separate wages of each were stated in the petition. They assert a lien on the property of the Superior Elkhorn Coal Company by virtue of section 2487, Ky. Statutes, and aver they have, thereby, a lien to secure their respective claims, aggregating $1,614.13.
In its answer, the Superior Elkhorn Coal Company traversed the allegations of the petition, and by a second paragraph set up and relied on a contract between it and Green Allen, and avers that he was mining coal as an independent contractor, and that the wages sought to be recovered were incurred by him and his employees while he was engaged as such contractor. A reply and amended reply were filed, thus forming an issue. The Lackey Mining Company was dismissed, on motion of plaintiff.
Evidence was taken, and, on submission for trial, a judgment was rendered in favor of each of the plaintiffs for the amount of their respective claims, and a lien allowed to secure their payment, on all of the real and personal property of the Superior Elkhorn Company which is described in the judgment. From this judgment, this appeal is prosecuted.
The appellees insist that it is shown by the evidence that the mining of the coal and the wages thereby earned by the appellees were not done by Gearheart, Allen, and Allen, as independent contractors, nor by Green Allen as such. They insist that, even if they were independent contractors, by section 2487, Ky. Statutes, under the facts alleged and proved, they have a statutory lien on the property of the Superior Elkhorn Coal Company to secure their wages for work done, inside of the mine, owned by it. A summary of the testimony is required to correctly consider and dispose of the questions presented and to be determined.
To get it exact, we prefer to give the questions propounded to answers made thereto by Mr. Green Allen, which are as follows:
"Q. Mr. Allen, what sort of contract did you have with Mr. Clere for mining and delivering the coal into the railroad cars? A. It was only a verbal contract.
Q. Go ahead and tell what the contract was. A. Well Sam Gearheart, Jim Allen and myself took the contract. Our first contract was $1.15 a ton, I think. I think we worked two weeks at $1.15, something like that, then we were to get a $1.20 a ton. ***
Q. The $1.15 and the $1.20 a ton represented the total cost of the coal in the cars to Mr. Clere did it not? A. Yes, that was the price for delivery in the car.
Q. In other words the only connection Mr. Clere had was to pay you that tonnage and you were to pay the labor and other things incident to putting it into the railroad cars. A. Of course we had to pay for all the cost for what we had to get it mined for and putting it into the railroad car.
Q. You employed the men to work for you and paid them out of the $1.15 and the $1.20 tonnage that was paid you for loading the coal in the car didn't you? A. He didn't pay us anything. If he had we might have paid something out of it.
Q. That was the contract wasn't it Mr. Allen? A. That was the contract. That was the man that had to pay for the coal, and if we had collected that we could have paid the men off. ***
Q. You were to pay him (George Brown) out of the tonnage which you were to get for loading the coal into the cars were you not? A. Yes sir, we were to pay all labor men. We was to pay them when we received the money for the coal. We couldn't pay without they paid. ***
Q. He was to pay $1.15 and $1.20 per ton to you three men on the contract and out of this all the labor that you furnished in producing the coal was to be paid? A. Yes sir, the Superior Elkhorn was the one that was supposed to pay that.
Q. You don't mean to say Mr. Allen that the Superior Elkhorn was to pay all your labor and in addition to that pay you $1.15 and $1.20 per ton for loading the coal in the car do you? A. $1.15 and $1.20 was what the Superior Elkhorn was supposed to pay.
Q. Now the figures that are inserted in this suit which are due these plaintiffs is that figured on the basis of $1.15 and $1.20 a ton? A. Yes sir."
The testimony of S. R. Gearheart and Jim Allen is substantially the same as that of Green Allen. R. D. Clere testified that he was the secretary-treasurer and manager of the Superior Elkhorn Coal Company, and that he made a contract with Green Allen by which he agreed to mine and put the coal in the cars for a fixed price per ton; that Allen employed his own men, had control over them, directed when they should go, where they should work, and when they should quit. He claims that the company had advanced to Green Allen and he had been overpaid $1,482.67. The material difference between Clere's version of the contract and that of Gearheart, Allen, and Allen, is, he claims that the contract was with Green Allen, whereas, Gearheart, Allen, and Allen claim it was with the three. Whether it was made with one of the Allens as claimed by Clere, or with the three as claimed by them, the questions to be determined are: (1) Was the mine operated by them or him, as an independent contractor? (2) and, if so, are they and their employees entitled to assert and enforce a lien against the property and effects of the owner of the mine?
The appellees cite and rely on the case of Harlan Gas Coal Co. v. Barnett, 203 Ky. 158, 261 S.W. 1113. They urge that the rule stated in it, even if the work was performed by them as employees of independent contractors, and as independent contractors, that section 2487, supra, when construed with chapter 88, Ky. Statutes (section 2721a--1 et seq.) on mines and mining, gives them a lien against the property of the owner of the mine. In the Harlan Gas Coal Co. Case supra, this language is used: "This court has defined the word 'employee' as used in those provisions [chapter 88, Ky. Stat.] to embrace all the laborers engaged in the mine and paid by the operator, whether employed directly by him or employed by an individual getting out coal under contract and employing assistants in such work."
This language was not used in reference to section 2487, supra. It was not there presented, discussed, nor considered by the court.
In chapter 88, Ky. Statutes, on mines and mining (section 2721a--1 et seq.), provisions are found which secure and protect the health, safety, and lives of employees while engaged in mining coal....
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