Wills v. Montfaik Gas Coal Co

• Decision Date: 31 May 1927
• Docket Number: (No. 5825.)
• Citation: 138 S.E. 749
• Parties: WILLS. v. MONTFAIK GAS COAL CO. et al.
• Court: West Virginia Supreme Court

138 S.E. 749

WILLS.

v.MONTFAIK GAS COAL CO. et al.

(No. 5825.)

Supreme Court of Appeals of West Virginia.

May 31, 1927.

Rehearing Denied July 12, 1927.

(Syllabus by the Court.)

Error to Circuit Court, Marion County.

Action by John Wills, administrator of Tony Wills, deceased, against the Montfair Gas Coal Company and another. Judgment for plaintiff against the named defendant, and it brings error. Affirmed.

Tusca Morris, of Fairmont, and Houston G. Young, of Charleston, for plaintiff in error.

Shaw & Shaw, of Fairmont, and Poffenbarger, Blue & Dayton, of Charleston, for defendant in error.

LIVELY, J. John Wills, administrator of Tony Wills, deceased, sued defendant coal company and Thomas Jarrett for the death of Tony, alleged to have been caused by their joint negligence and carelessness, and upon a verdict of $S, 000 against the company, judgment was entered, from which the coal company prosecutes error.

Tony Wills was employed in defendant coal company's mine, and at the time of his death, April 10, 1920, was working as a brakeman or "snapper" on a gathering motor train in a part of the mine designated as the "Third Right." Prior to that day he was a "trapper, " but at previous times had worked as "snapper." His father, John Wills, was a tracklayer in the mine, and it appears that prior to the acquisition of the mine by defendant, November 1, 1918, the father and son had worked in the mine, and that the latter was, at the time of purchase, working as a "snapper." In the first month of defendant's ownership of the mine, November, 1918, Tony's hand was injured while he was working as a snapper, for which injury he received compensation from the workmen's compensation fund, to which defendant was always a subscriber in good standing. When defendant purchased the mine, the father, according to defendant's testimony, made affidavit that the son was over 16 years of age. Later a mine inspector required and was given a second affidavit signed by the father, to the effect that Tony was over 16 years of age. The father denied ever making these alleged affidavits. They were not produced in evidence.

From November, 1918, up to the time of his fatal injury on April 10, 1920, Tony was employed as a trapper. On the day of the fatal injury, there was a vacancy in the position of "snapper" on the gathering motor inthe "Third Right, " and Tony was directed to take the position, and did so. There is a sharp controversy over this change of employment from "trapper" to "snapper." Defendant Jarrett, the mine foreman, says that early that morning he met John Wills and Tony as they were going to work, and informed them of the vacancy, and asked them if Tony wanted that job, having theretofore been solicited by John to give his son more remunerative employment; and Tony, with the assent of the father, took the position. John Wills, the father, denied this, and says that he never had such a conversation, and that he had consented only to Tony's employment as a trapper, and had told Jarrett and his assistant, Charley Garrison, that he did not want the boy to work other than as a trapper. Other witnesses corroborate John Wills in this.

When Tony worked as snapper in November, 1918, the mine foreman had instructed him about the dangers of the position, and especially warned him not to ride on the bumpers of the mine cars while they were in motion. Tony's father had warned him not to ride the bumpers; and on the day he was killed he had been twice warned, once by Prank Banks, a fellow employee, who caused the motorman to stop the cars, so that Tony might get off the bumper, where he was riding, and get inside the car or in the pit of the motor; but Tony did not leave his position on the bumper. And on the fatal trip, the motorman told him not to ride the bumper. On this last trip the motor was shoving one empty car, on the front bumper of which Tony was riding in a squatting position with his left arm over the front top of the car, when the car was derailed, causing the boy's head to be caught and crushed between the top of the car and a projecting rib of coal, resulting in almost instant death.

Three special interrogatories were propounded to the jury on motion of defendant, which were in effect as follows: (1) Was Tony 16 years old at the time of the accident? (2) In the event that the jury should find that he was not 16 years of age, then was his employment as a snapper acquiesced in or consented to either expressly or impliedly by the father, and was the employment the natural, probable, and anticipated cause of the injury? (3) And should the answer of the jury be no to the first two interrogatories, then was Tony, at the time of his death, possessed of such wisdom, experience, and sagacity as would take him out of the class of youths under 16 years of age and make him for such reason capable of contributory negligence? To all of these interrogatories the jury answered "No." To the declaration both defendants had put in the general plea of not guilty, and had filed two special pleas, one to the effect that defendant company had complied with the Workmen's Compensation Act and was not liable because Tony was over 16 years of age; and the other was that, if Tony was under 16 years, John Wills had consented to his employment as snapper, was his sole distributee, and was thus barred from recovery.

There are three counts in the declaration. The first count charges that defendants employed Tony Wills, who was under the age of 16 years, to work in a coal mine, in which employment he was killed in the operation of the mine cars, and the unlawful employment was the cause of his death. The second count says that John Wills, the father and plaintiff, consented to the employment of Tony in the mine, to work therein as a trapper, and that afterwards defendants, against the ex-, press direction of the father and against his consent, changed the employment from trapper to snapper (a highly dangerous position), and, not regarding their duty, employed an incompetent and unskilled motorman to haul the cars on which Tony worked as snapper or brakeman, which motorman operated the motor negligently and carelessly, causing the cars to be derailed, catching Tony between them and the face of the coal, causing his death. The third count charges the unlawful employment of the minor son as a snapper against the express wishes and refusal of the father to consent thereto; that it was the duty of defendants to provide a safe place to work, to employ a competent motorman, make and enforce reasonable rules for the operation of the motor and cars, which duties were breached by defendants, in that they did not employ a competent motorman, did not adopt reasonable rules, and did not furnish a safe place to work, but, on the contrary, permitted the ties, rails, tracks, and roadbed to become and remain out of repair and dangerous, and employed an incompetent and unskilled youth of 18 years of age as motorman, who negligently and carelessly operated the motor and cars over the defective tracks at excessive speed, which caused the cars to leave the track, thus causing the boy's death.

As above stated, the jury found the deceased to be under 16 years of age when fatally injured; that his father did not consent either expressly or impliedly to his employment as a snapper; and that Tony was not of such experience and precocity as to render him capable of contributory negligence.

Numerous bills of exception were taken during the trial, and it is insisted that all show prejudicial error. One alleged error is that the verdict against the coal company, without mention of the other defendant, Thomas Jarrett, a joint tort-feasor, is not responsive to the pleadings and issues, and therefore the motion to set it aside should have been sustained. It is argued that, as Jarrett has pleaded not guilty, and the verdict is silent upon his plea, and that if it be held that the failure to render a verdict against him exonerates him from liability, then the coal company is also acquitted under the doctrine of respondeat superior; that a verdict which exonerates the servant in an action against the master and servant for injuries received because of misfeasance or nonfeasance of the servant also exonerates the master; and that, inasmuch as the declaration was based on concert of negligent actions by the two defendants, and there was no claim or charge of separate cause of action against either of the defendants, there could be no separate recovery against either. To sustain this alleged error, Morris v. Northwestern Imp. Co., 53 Wash. 451, 102 P. 402; Southern R. Co. v. Harbin, 135 Ga. 122, 68 S. E. 1103; Sipes v. Puget Sound Elec. Ry. Co. et al., 54 Wash. 47, 102 P. 1057; McGinnis v. C, R. I. & P. R. Co. et al., 200 Mo. 347, 98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Pep. 661, 9 Ann. Cas. 656; Stevick v. N. P. R. Co. et al., 39 Wash. 501, 81 P. 999; Indiana Nitroglycerine & Torpedo Co. v. Lippincott Glass Co., 165 Ind. 361, 75 N. E. 649; and Doremus v. Root et al., 23 Wash. 710, 63 P. 572, 54 L. R. A. 649, are relied upon. These cases say that, where the action is a joint one against the master and the servant for negligence, and the negligence of the servant is of such a character that the master could not have been negligent unless the servant was negligent, then a verdict excusing the servant, or which is silent as to his negligence, will also excuse the master, and cannot stand. If the negligent act of the servant is the sole cause of the injury and the jury finds him not guilty, then the master is not liable under the doctrine of respondeat superior. The doctrine of respondeat superior is based on the proposition that he who expects to derive advantage from an act which is done by another for him must answer for an injury sustained by a third person from that act. Sawyer v. Corse, 17 Grat. (58 Va.) 243, 94 Am. Dec. 445. Where the servant's negligent act is the sole cause of...