Suttle v. Hope Natural Gas Co.
| Decision Date | 22 October 1918 |
| Docket Number | 3534. |
| Citation | 97 S.E. 429,82 W.Va. 729 |
| Parties | SUTTLE v. HOPE NATURAL GAS CO. |
| Court | West Virginia Supreme Court |
Rehearing Denied Nov. 16, 1918.
Syllabus by the Court.
Where a demurrer to a declaration, technically defective for failure to aver plaintiff's appointment and qualification as administrator in an action brought by him as such, is erroneously overruled, and plaintiff immediately and in the presence of counsel for defendant moves for leave to amend and leave is granted without objection, and the declaration is amended by inserting the proper averment, such voluntary amendment after demurrer overruled is not equivalent to a demurrer sustained, and under such circumstances the informal notice is sufficient.
With respect to the employés of an employer engaged in interstate commerce, the state possesses full and exclusive power to prescribe a method of compensation for all such employés whose work is wholly intrastate and clearly separable and distinguishable from work in interstate commerce, and the state also has permissive power to prescribe a method of compensation within the field belonging primarily to Congress until the latter has exercised its superior power covering the same subject.
With respect to an employer engaged in interstate commerce section 52 of the Workmen's Compensation Act (chapter 15P, Code [sec. 708]) applies the provisions of the act unconditionally to those of his employés whose work is wholly intrastate and clearly separable and distinguishable from work in interstate commerce, though the same section, with respect to employés who are engaged partly in intrastate and partly in interstate commerce, provides that the act shall apply only upon the condition that the employer and such employés voluntarily accept the provisions of the act by formal writing approved by the commissioner.
An employé of an interstate carrier of gas, assisting in the erection of a three-pole rig or derrick to be used in cleaning out a gas well in order to accelerate its production, and whose work then and on other occasions was wholly distinct from the transportation phase of the business, is engaged in work clearly separable and distinguishable from interstate commerce, within the meaning of section 52 of the Workmen's Compensation Act, and entitled to the benefit of the provisions of that act.
As a general rule, an employer owes to his employés the duty to promulgate and enforce reasonable rules and regulations for their guidance and protection; but, in the absence of evidence showing that such rules would be useful and feasible under similar circumstances, the employer cannot be held negligent in having failed to promulgate them.
And an instruction fixing liability upon defendant, without proof sufficient to establish the necessity and feasibility of such rules and regulations, when applied to the particular work ordinarily is erroneous, and ought not to be given.
The rejection or exclusion of testimony offered to show the feasibility of and necessity for the promulgation of rules and regulations for the protection of employés while engaged in the performance of dangerous work is erroneous.
An instruction imposing upon an employer the duty to promulgate and enforce rules and regulations for the protection of its employés should prescribe with reasonable definiteness the nature of the rules sought to be required, and not leave to the jury's conjecture the determination of their character.
Error to Circuit Court, Harrison County.
Action by J. Addison Suttle, administrator, etc., against the Hope Natural Gas Company. Judgment for plaintiff, and defendant brings error. Reversed, and remanded for new trial.
A. B. Fleming, Charles Powell, and Kemble White, all of Fairmont, for plaintiff in error.
Steptoe & Johnson, of Clarksburg, for defendant in error.
Plaintiff's intestate, his son, nearly 16 years old, was killed by the fall of a three-pole derrick which he and other employés of the defendant were engaged at the time in erecting preparatory to and necessary for the cleaning of a gas well to accelerate its production. The derrick was formed while on or near the ground out of three stems of 6-inch pipe, 40 to 50 feet long, bound together at one end, the other ends of two of them being placed or chained at or near the sockets prepared to receive them when hoisted into the proper position, and cut in the sills supporting the platform around the well, the third stem extending out in the opposite direction like the lower part of the letter Y, and being the last one to reach and enter the socket, likewise prepared, the sockets being equally distant from each other, estimated to be from 15 to 18 feet, and, as thus formed, bound, placed, and chained, the apparatus was raised into position by means of the team of horses driven by the decedent, hitched to a line connected with one or more pulleys and fastened to the third stem. When it was raised almost to the position desired, defendant's foreman, Bramer, ordered Suttle to disconnect the team, return it to the derrick, and reconnect with the line a second time, the better to complete the hoisting process. This order the deceased obeyed, and drove the team within the triangle formed by the three stems, and with the assistance of an employé had almost completed what he was told to do, during which time Bramer was engaged in "pinching" one of the stems into its socket, when the derrick fell and caused the death of the decedent, while trying to escape the falling stems, but did not injure the horses, though still within the triangular space.
The declaration avers three different causes of action in nine counts, to each of which and to the declaration as a whole defendant at the May, 1917, term demurred. The causes are the failure (1) to provide a reasonably safe place and appliances in and with which to work; (2) to warn and instruct; (3) to promulgate and enforce proper rules and regulations. At the September term the court overruled the demurrer, and, as appears from the order, plaintiff thereupon amended the pleading by adding to each count an averment of his appointment and qualification as personal representative, and later moved for an order to require defendant to plead to the amended declaration on or before October 2d, that date being within the term. On that day defendant appeared specially and entered its protest and objection to the enforcement of the requirement to plead, basing its argument upon the ground that, as it had demurred, plaintiff could not within that term amend and compel an issue upon the pleading, except upon the notice required by section 12, c. 125, Code (sec. 4766), and that no such notice was given. The objection being overruled, defendant pleaded the general issue.
Defendant was present in court by counsel when the demurrer was overruled and the declaration amended, and therefore was advised of the action taken. Besides, the statute cited requires notice only where a demurrer is sustained, not when it is overruled. But defendant contends that, though the order "doth now overrule the said demurrer," yet in the next line it shows a confession of insufficiency by permitting plaintiff to amend by averring his appointment and qualification, as required in Austin v. Calloway, 73 W.Va. 231, 80 S.E. 361, Ann.Cas. 1916E, 112, and that therefore there can be no difference in plaintiff's position, where he confesses the demurrer to be good and moves to amend, and where the court holds the demurrer to be good, necessitating amendment. In other words, defendant contends that a voluntary amendment after demurrer overruled is the same as a demurrer sustained. There is a substantial difference, we think, between voluntarily amending a pleading and being compelled to do so on penalty of dismissal, with costs, after the court has adjudged it to be materially defective. There is greater need for the formal notice in the latter case, since the demurrant has been lulled into a sense of security by the sustaining of his challenge to the declaration. Furthermore, defendant seems not to have been prejudiced by the action taken, because he was present in court by counsel at the time the amendment was offered and interposed no objection then for want of formal notice.
Nor did the court err in overruling defendant's motion for a continuance based upon the absence of Cain, one of the eyewitnesses of the accident, then in the service of the United States. Defendant introduced only two witnesses, Cooper and Quay, the purport and effect of whose testimony was to show the interstate character of the business in which defendant was engaged at the time of the injury, from which it was argued that defendant's failure to pay premiums into the state compensation fund did not deprive it of the common-law defenses. It did not call to the stand Bramer, its foreman in charge of the work, and present at the time the injury. was inflicted. With the exception of Bramer and Cain, the employés witnessing the accident were called by the plaintiff to testify in his behalf and subjected to cross-examination by the defendant's counsel.
The next ground relied on for reversal goes to the exclusion of the testimony introduced to establish the general intrastate and interstate character of defendant's business and of the work being done when the derrick fell. Thus the gas from the well, it appears, had, immediately preceding the attempt to clean the well, been transported and delivered through trunk pipe lines, with which feed lines from the well were connected, beyond the state line into Ohio, and there sold together with like production from other wells controlled and operated by defendant, to another company for distribution to its...
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