Weatherford v. Arter
| Decision Date | 13 February 1951 |
| Docket Number | No. 774,774 |
| Citation | 135 W.Va. 391,63 S.E.2d 572 |
| Court | West Virginia Supreme Court |
| Parties | WEATHERFORD, v. ARTER. C.C. |
Syllabus by the Court
The occupant of a residence, located in this State, who uses it as a home and who employs another person to nurseand attend the sick husband of such occupant, in such residence, is not an employer 'regularly employing other persons for the purpose of industry or business in this State' within the meaning of Section 1, Article 2, Chapter 23, of the Code of West Virginia, as amended, and is not subject to the provisions of the Workmen's Compensation Law of this State.
W. Hayes Pettry, Charleston, for plaintiff.
Kay, Casto & Amos, John S. Haight, Charleston, for defendant.
This action of trespass on the case was instituted in the Circuit Court of Kanawha County by the plaintiff, Harriett Weatherford, to recover from the defendant, Mrs. John Y. Arter, Sr., damages for personal injuries sustained by the plaintiff as the result of the alleged negligence of the defendant.
The declaration contains three separate counts. The substance of each count is that the defendant occupies and maintains a residence in the City of Charleston; that she employed the plaintiff for a period of approximately five months during the year 1949 to nurse and attend the defendant's husband, who was ill and confined to his room on the second floor of the residence; that in the performance of her duties the plaintiff was required to go to the kitchen on the first floor of the building to obtain from a refrigerator food for the husband of the defendant; that a maid employed by the defendant in cleaning the floor of the kitchen, caused water, soap and other slippery substances to accumulate and remain upon the floor of the kitchen which rendered the floor dangerous and unsafe; that, on August 23, 1949, the plaintiff, without knowing the dangerous and unsafe condition of the floor, while walking upon it, because of the slippery substances, and without fault upon her part, fell, and in so doing, sustained severe and permanent injuries to her person; that the defendant negligently failed to furnish and maintain a safe place for the plaintiff to engage in the performance of her duties; that her injuries were caused by this negligence of the defendant; that the defendant, in her employment of the plaintiff, was an employer subject to the provisions of the Workmen's Compensation Law of this State, and that, because of her failure to pay to the Workmen's Compensation Fund the premiums provided by law the defendant became liable to the penalties imposed by that statute.
The written demurrer filed by the defendant assigned only two grounds; (1) The declaration, in each count, fails to show that the defendant is an employer engaged in any form of industry or business within the meaning of the Workmen's Compensation Statute of this State; and (2) the defendant is expressly excluded from the provisions of that statute.
By order entered July 28, 1950, the Circuit Court sustained the demurrer of the defendant to the declaration and each of its counts for the stated reason that the defendant is not a person 'regularly employing other persons for the purpose of carrying on any form of industry or business in this State' within the meaning of Chapter 23, Article 2, Section 1 of the Code of West Virginia, as amended.
On joint application of the parties, the Circuit Court certified to this Court these two questions: (1) Whether the declaration, in each of its counts, fails to show that the defendant was engaged in any form of industry or business in this State within the meaning of the West Virginia Workmen's Compensation Statute, Chapter 23, Article 2, Section 1 of the Code of 1931, as amended; and (2) whether the defendant is specifically excluded from the provisions of that statute by the language of Chapter 23, Article 2, Section 1 of the Code of 1931, as amended.
The challenge to the legal sufficiency of the declaration is limited to the first certified question, and other questions that may be decisive of the sufficiency of each count of the declaration in stating a cause of action are not presented by the certificate. Consideration of the statute, Section 2, Article 5, Chapter 58, Code, 1931, indicates that the general purpose of the Legislature in enacting it was to enable this Court to determine upon certificate all questions involving the sufficiency of a summons, a return of service, or a pleading which affect or control the final disposition of a case before vexatious costs are incurred or needless delays occur in its ultimate and complete determination. State v. Houchins, 96 W.Va. 375, 123 S.E. 185; City of Wheeling v. Chesapeake and Potomac Telephone Company of West Virginia, 81 W.Va. 438, 94 S.E. 511.
No question as to the sufficiency of the declaration, or any of its counts, aside from the two questions certified, has been raised upon the demurrer or presented by th certificate, and neither question certified is decisive of the sufficiency of the declaration in its entirety. The statute, however, expressly provides that 'Any question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading, in any case within the appellate jurisdiction of the supreme court of appeals, may in the discretion of the circuit court in which it arises, and shall, on the joint application of the parties to the suit, in beneficial interest, be certified by it to the supreme court of appeals for its decision, * * *.' The statute contemplates an unequivocal original ruling by the trial court in any case certified to this Court and only such questions as have been decided by the trial court and by it certified here may...
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