Swope v. Coal

• Court: Supreme Court of West Virginia
• Writing for the Court: POFFENBARGER, J.
• Citation: 78 W.Va. 517
• Parties: B. O. Swope, Adm'r v. Keystone Coal and Coke Co.
• Decision Date: 01 June 1916

78 W.Va. 517

B. O. Swope, Adm'r
v.
Keystone Coal and Coke Co.

Supreme Court of Appeals of West Virginia.

Submitted September 28, 1915.
Decided June 1, 1916.

[78 W.Va. 517]

1. Death Actions by Causing Death Persons Entitled to Benefit.

For the death of a boy under fourteen, years old, in consequence of his employment in a coal mine, in violation of the statute, Code, 1913, ch. 15H, sec. 26, ser. see. 485, Barnes' Code, ch. 15H, sec. 24, with the consent of the father, express or implied, there is no right of recovery by the administrator for the benefit of the father. (p. 520).

2. Same.

A father's abandonment of his wife and children, sufferance of the procurement of a decree of divorce, alimony and custody of the children by the wife and avoidance of payment of the alimony by flight from the state, constitute the wife his agent for the care and custody of the children, and her exposure of one of them to danger resulting in his death, is the negligence of the father and precludes right of recovery of damages for his benefit. (p. 525).

3. Same.

On the preclusion of the father from right of recovery in such case, the mother, brothers and sisters, standing next to him in order of benefit under the statute, cannot be substituted for him as beneficiaries, so as to allow a recovery by the administrator for their benefit. (p. 521).

4. Master and Servant Death of Servant Contributory Negligence Minor.

Superior intelligence, precociousness and experience on the part of a boy employed in violation of a statute and killed in such employment, does not bar right of recovery, in the absence of other circumstances precluding such right, but proof thereof is admissible as a circumstance tending to prove contributory negligence on the part of the boy, if such defense is interposed. (p. 525).

5. Death Actions for Causing Death Instantaneous Death.

That a death by wrongful act was instantaneous does not preclude right of recovery therefor. (p. 525).

Error to Circuit Court, McDowell County.

Action by B. 0. Swope, administrator, against the Keystone Coal & Coke Company. Judgment for plaintiff, and defendant brings error.

Reversed and new trial awarded.

[78 W.Va. 518]

Anderson, Strother, Hughes & Curd and Sanders & Crockett and Russell S. Ritz, for plaintiff in error.

G. W. Howard and Cook, Litz & Harman, for defendant in error.

POFFENBARGER, JUDGE:

The administrator of the estate of a boy, aged eleven and one-half years, killed in the defendant's mine, while working therein as an employee, in violation of the statute inhibiting the employment by coal-mine operators, of boys under fourteen years of age, recovered a judgment in this action for the sum of $7,000.00, as damages for injury occasioned by the alleged negligence and wrongful conduct of the defendant. The administrator was appointed and the action brought at the instance of the father of the deceased boy, from whom the mother had obtained an absolute divorce on the 16th day of March, 1911, as well as the award of the care and custody of their four children, including the boy subsequently killed. About two years later, February, 1913, this boy, with the consent of his mother, was employed by the defendant as a trapper, and his death was occasioned in July or August, 1913, by a fall of slate while he was riding on a coal car which, for some reason, struck and knocked down a prop, in consequence of which the slate fell. The father and mother had been separated for about four years, prior to his death, and divorced for a little more than two years. Although the decree of divorce required the father to pay $25.00 per month as alimony, he left the state after the decree and contributed nothing to the support of the wife or the children. The principal defense to the action was a compromise agreement made by the mother and the guardian of two of the children with the defendant, on the theory of lack of right in the father to recover anything, because of his misconduct, by which the defendant agreed to pay them $3,000.00. Contributory negligence on the part of the father was also relied upon as a bar to the action.

The special plea setting up the compromise, as a bar to the action, proceeds upon the theory that the statute, properly construed, denies to the father any right of recovery through

[78 W.Va. 519]

the personal representative, on account of his conduct, abandonment of the boy, refusal of the fatherly care and protection to which he was entitled and establishment of a relation between them, rendering highly improbable any pecuniary benefit to him from the boy's life, had he lived, and substitution of the mother and the sisters to the benefits conferred by the statute. In other words, the interpretation claimed would eliminate the father as effectually as if he were dead, and pass the benefit of the statute over to the mother and sisters. Whether this is the true construction of the statute or not, the plea was bad and the court properly struck it out. The alleged compromise did not include all the beneficiaries. Only the mother and the guardian of two of the children were parties to it. There was a third sister, as the plea itself shows on its face, who was not averred to have been a party to the compromise. If they are entitled to stand in the father's place, the administrator could sue for the benefit of the third and omitted sister.

But the ruling of the trial court is not based upon this defect in the plea. Following the strict letter of the statute, the court held that the father might recover indirectly through the personal representative, notwithstanding his conduct, and also that, he being alive and first in order of benefit under the statute, the mother and sisters could not be substituted or recognized as beneficiaries. Under this view of the meaning of the statute, it not only rejected the plea but also excluded evidence offered to prove the conduct on the part of the father, relied upon to bar his right. An important inquiry in the case, therefore, is the ascertainment of the meaning of the statute.

The material portions of the statute read and provide as follows: "Every such action shall be brought by and in the name of the personal representative of such 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 dyingintestate." Section 6, ch. 103. Code, ser. sec. 4410. Under the general statute of distributions, the personal estate goes first to the children of the decedent and their descendants.

[78 W.Va. 520]

If there be none such, then to his father. And, if there be no father, then to his mother, brothers and sisters and their descendants. Sees. 1 and 9 of ch. 78 of the Code, ser. sees. 3901 and 3909. "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, 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.'' Sec. 5. '' In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars." Sec. 6, ch. 103, Code.

The terms of the statute are general, recognizing no exception on any ground. Like the statute of descents and distributions, it gives the benefit of the recovery to such persons as stand in certain relations to the decedent. Indeed, for the purpose of distribution of the funds, when recovered, it adopts the provisions of that statute. The right of action is...