Waldron v. Garland Pocahontas Coal Co.

• Decision Date: 08 November 1921
• Docket Number: No. 4331.,4331.
• Parties: Guy F. Waldron v. Garland Pocahontas Coal Co.
• Court: West Virginia Supreme Court

89 W.Va. 426

Guy F. Waldron

v.Garland Pocahontas Coal Co.

No. 4331.

Supreme Court of Appeals of West Virginia.

Submitted October 25, 1921.

Decided November 8, 1921.

Submitted October 25, 1921. Decided November 8, 1921.

1. Death Contributory Negligence of Father Consenting to Deceased Son's Employment in Mine Held Question for Jury.

If a father consents to the employment of his son, under 16 years of age, in a coal mine, or, after the son is employed therein, he acquiesces in and agrees to the continued employment, and, afterwards, the son while so employed, is killed by an accident arising from one of the ordinary risks of the employment, the contributory negligence of the father in consenting to the employment, or in acquiescing therein after the employment, will prevent recovery of damages for his sole benefit against the coal mining company; but if there is a serious and substantial conflict in the evidence as to whether the father did in fact agree to or acquiesce in the unlawful employment, it becomes a question for the jury. (p. 428).

2. Master and Servant Relation of Independent Contractor Held Not Created.

Whether a person performing work for another is an independent contractor depends upon a consideration of the contract of employment, the nature of the business, the circumstances under which the contract was made and the work was done. And if it appears that the owner of the business retains general control of the premises where the work is being performed, and has power to direct when it shall be performed, furnishes part of the equipment, does a portion of the work himself necessary for the continuance of the work to be done under the contract, pays the contractee a stipulated price per square yard of the work performed, and that there is no fixed time for the termination of the contract, the relation of independent contractor is not established; although the contractee under such contract employs and discharges his employees on the work, and pays them out of the money he derives from the contract. (p. 432).

33. Same Relation of Independent Contractor Must be Proved by Mine owner.

To avoid liability for personal injuries to an employee in a coal, mine, on the ground that the work therein at which the employee was injured was being done under contract by an independent contractor, and that therefore the relation of master and servant did not exist between the injured person and the mine owner and operator, it is incumbent on the mine owner to prove all the facts and circumstances necessary to establish that the work was being done by an independent contractor. (p. 432).

(Ritz President, absent.)

Error to Circuit Court, McDowell County.

Action by Guy F. Waldron, as administrator of his son, Philip Waldron, deceased, against the Garland Pocahontas Coal Company for damages for deceased's death. Verdict and judgment for the plaintiff, and the defendant brings error.

Affirmed.

Sanders, Crockett, Fox & Sanders, and Strother, Taylor & Taylor, for plaintiff in error.

John Kee and Russell S. Ritz, for defendant in error.

Lively, Judge:

From a verdict and judgment for $10,000.00, rendered on. the 17th day of February, 1921, defendant prosecutes this writ of error.

Plaintiff instituted this action for damages as administrator of Philip Waldron, alleging that the intestate, his son, a boy between the age of 13 and 14 years, was negligently killed while in the employ of defendant in its mine on September 11, 1919.

The defense relies on two grounds; (1) contributory negligence on the part of the father and administrator, in that he consented to or acquiesced in the employment of the boy in the mines; and (2) that at the time the boy was killed he was not in the employ of defendant, but was working in the mine for an independent contractor, a Mr. Thompson, who was driving an entry for defendant.

The boy had been in the habit of working away from home, and about three months before he was killed he, with his father's consent, went to the home of H. F. Short, his stepgrandfather, who lived about one mile from defendant's mines, and who promised to put the boy in school. In the early part of August Short asked the manager of defendant coal company if he could give the boy employment, and was answered in the affirmative, conditioned, however, on the boy's being 16 years of age or over, and Short replied that he would have the father to sign a statement about the boy's age. Such statement was afterwards brought to the manager and reads: "Aug. 12, 1919. Garland Pocahontas Coal Co. Gentlemen: Phil Waldron is my son, he is 16 years old. Guy Waldron." The boy was employed as a trapper in the mine. About two weeks prior to the boy's death, Short was on a visit to the boy's father and mentioned to him that he had sent the boy to him prior to that time to have him sign a paper about his age, so that he could get employment from Mr. Baldwin, and the father replied that he had not seen the boy; that he had not come home; that he had not signed any such paper. Short then told the father that he would tell Baldwin not to work the boy and the father replied, "No, never mind, just leave the boy alone," and on being pressed he testified that the father might have added, "Maybe he will come home." The father's version of that conversation is that when Short told him that the boy was at the mine he told him that he would suffer his right hand to be cut off before he would sign a permit; that the child was too young to work in the mines and that he wanted him to go to school. Then Short told him he would tell Mr. Baldwin not to work him, to which he replied: "Maybe we had better let him alone, maybe he will come home in a few days." The Sunday before the boy was killed the father was on a visit to Short, who then told him that the boy had left his house and was staying at a boarding house, was doing no good, getting a dollar a day, and for him to go up there and take the boy home, and the father then told him he would have the boy sent to the reform school. The father said he was looking for the boy to get him. on the train to take him home, but after the train passed the station he saw the boy standing on the porch of the company's store. Both the father and mother say they had heard that the boy was working for defendant, but did not know it to be true, and did not know what work he was doing. There was one question propounded to the father which indicated that he had heard that the boy was working in the mine. He was asked, "How long was it before he was killed that you heard he had been working in the mine?" Answer: "I couldn't say positive, it might have been a week or two weeks." It will be observed that the question related particularly to the time when he had received information, and not specially to whether the employment was in or out of the mine. After the boy had gone to his grandmother's house, he made one or two visits to his father's home, five or six miles away, when his father purchased for him a pair of shoes, but did not ask the boy if he was working or for whom; and it does not satisfactorily appear whether these visits were before or after the boy had gone to work for defendant. It is on this evidence that the claim of defendant is based, that the father, and administrator, consented and acquiesced in the employment of his boy in the mine, at a dangerous occupation, and therefore was guilty of such contributory negligence as to preclude recovery. Under this evidence, can we say that it is proven with sufficient conclusiveness that the father acquiesced in or consented to the employment in the mine, to impel us to hold as a conclusion of law that the father was guilty of contributory negligence? It does not appear with any reasonable degree of certainty that the father knew the boy was trapping in the mine or hauling slate out of the mine. He never saw the boy at any kind of work there; and it is clear that he refused to give any permit, and wanted the boy to go to school. There is no variance between the evidence of the grandfather and the father on the refusal to give a permit, or to make the written statement that the boy was 16 years old. We pause here to say that much of the evidence relating to the permit or the apparent age of the boy is of no materiality. Under sec. 24, chap. 15 H, Code, 1918, making it unlawful to permit a boy under 14 years of age to work in a coal mine, an affidavit was required, before employment, from the parent or guardian that the boy's age is 14 years or more, and which affidavit as to the employer was conclusive as to the age of such boy. But by chap. 17, Acts, 1919, passed February 11, 1919, and in effect ninety days from its passage (and in effect when this boy was employed) it is provided in sec. 2, "No child under the age of sixteen years shall be employed, permitted or suffered to work in any mine, quarry, tunnel or excavation," and there is no provision for affidavit as to age. This act expressly repeals sec. 24, chap. 15 H of the Code. The fact that the child is under 16 years of age makes the employment unlawful; and, if injury results, there is prima facie negligence on the part of the employer. See Norman v. Coal Co., 68 W. Va. 405; Daniel v. Big Sandy C. & C. Co., 68 W. Va. 491; Blankenship v. Coal Co., 69 W. Va. 74; Dickinson v. Stuart Colliery Co., 71 W. Va. 325; Griffith v. American Coal Co., 75 W. Va. 686; Mangus v. Coal Co., 87 W. Va. 718. Many modern decisions are that the failure to perform a statutory duty in such cases is negligence per se. See L. R. A. 1915 E. p. 506, note to the case of Conway v. Monidah Trust (Mont.) The prima facie presumption of negligence is not attempted to be overcome in this case. It is tacitly conceded that the employment was unlawful. Even under the old law an affidavit of the parent or guardian as to the child's age was required, and no affidavit was had, simply a written statement that the boy was the son of Guy Waldren and...