Wills v. Montfair Gas Coal Co

• Decision Date: 11 November 1924
• Docket Number: (C. C. No. 296.)
• Citation: 125 S.E. 367
• Parties: WILLS. v. MONTFAIR GAS COAL CO. et al.
• Court: West Virginia Supreme Court

125 S.E. 367

WILLS.

v.MONTFAIR GAS COAL CO. et al.

(C. C. No. 296.)

Supreme Court of Appeals of West Virginia.

Nov. 11, 1924.

(Syllabus by the Court.)

Action by John Wills, administrator of the estate of Tony Wills, deceased, against the Montfair Gas Coal Company and another. A demurrer to the declaration was overruled and the ruling certified for review. Affirmed.

Shaw & Shaw, of Fairmont, and Poffen-barger, Blue & Dayton, of Charleston, for plaintiff.

Tusca Morris, of Fairmont, for defendants.

LIVELY, J. Having overruled the demurrer to the declaration and to each count thereof, the circuit court has certified its ruling for review. The suit is in case and against the Montfair Gas Coal Company and Thomas Jarrett, its mine superintendent, for the death of plaintiff's decedent, Tony Wills, an employee of defendant Coal Company, alleged to have been caused by the negligence of both defendants.

The first count charges, in substance, that defendants employed Tony Wills, a boy under the age of 16 years, to work in the coal mine, and in which employment he was killed in the operation of the cars. The unlawful employment of the boy resulting in his wrongful death in the course of his employment is the substance of this count. Defendant says that there is a misjoinder of defendants in this count; that defendant Thomas Jarrett, the superintendent, cannot be joined with the Coal Company because the Coal Company violated the statute in taking into its employment in its mine a boy under the prohibited age. The child labor statute answers this contention. Section 72, c. 15H, Code, says:

"No child under the age of 16 years shall be employed, permitted or suffered to work in any mine, quarry, tunnel or excavation."

And section 74d of the same chapter, makes any person or any agent or representative of any firm or corporation who permits or suffers such child to work in violation of any of the provisions of the act liable to fine for the first violation, and a more severe penalty for subsequent violations. The firm or corporation which employs, and the person or agent who suffers or permits the infant to work, have committed an unlawful act, and each are liable for an injury resulting proximately from that unlawful act; and in addition thereto the person or agent who permits the child to work is liable to fine, or fine and imprisonment for continued violation.

There is no reason perceived why the Coal Company and its superintendent who employed and permitted the infant to work in the mine cannot be joined as joint tort-feasors. See Barger v. Hood, 87 W. Va. 78, 101 S. E. 280. If the tortious act be jointly done, or severally done though for a similar purpose and at the same time, without concert of action, the actors are joint tort-feasors. Ordinarily both parties guilty of concurrent negligent acts may be joined in the action, even though they had no common purpose, and there was no concert of action. Johnson v. Chapman, 43 W. Va. 641, 28 S. E, 744. There is no misjoinder of parties in this count. While the decisions are not harmonious, the weight of authority backed by reason sustains the right of an injured person to join in the same action master and servant where the right of action springs from the wrongful act of the servant for which the master is responsible. See May-berry v. Northern Pac. R. Co., 100 Minn. 79, 110 N. W. 356, 12 L. R. A. (N. S.) 675 and annotated note to same case in 10 Ann. Cas. 754.

In the Mayberry Case plaintiff's intestate was a switchman in the employ of defendant railroad company, and was killed because he was required to work in an unsafe place by the company, and because the other defendants, Wilson, the locomotive engineer, and Julien, another switchman, both in the employ of defendant company, negligently failed to discharge their duties as such. The negligence of the two employees of defendant, combined with the unsafe place in which defendant was working, caused the accident resulting in the death. The only question raised by the demurrer was whether both the railroad company and the negligent employees could be joined in the same action; and which question was decided in the affirmative by the appellate court. But that point is not raised in the instant case; the contention being that it was improper to join Jarrett, the superintendent, with the Coal Company in the first count, and therefore there was a misjoinder of counts. As above stated there is no misjoinder of parties in the first count, and it follows that there is no misjoinder of counts.

The second count alleges, in substance, that decedent was under 16 years of age and was employed by defendants, with the consent of John Wills, his father and plaintiff, now suing as administrator, to work in the mine as a trapper, an employment not dangerous, and that afterwards, against the consent of his father defendants required him to work in the mine as a snapper or brakeman on its cars used in hauling the coal, a position attended by great danger and risk, disregarding their duty to continue him in the employment as a trapper, and placing him in a position of hazard and danger; and not regarding their duty, then and there employed an incompetent, unskilled, and careless motorman, a boy under 21 years of age, to haul the cars of coal on which Tony became a snapper or brakeman; and, while so engaged as snapper, the motor was so negligently and carelessly operated by the incompetent motorman that the cars were thrown from the tracks and Tony caught between them and the wall or face of the coal and killed. Defendants say that this count is demurrable because it shows on its face that plaintiff, the father and sole beneficiary of any damages which may be recovered by the alleged wrongful death, was guilty of contributory negligence in permitting his boy to work in the mine and is barred fom recovery, citing Morrison v. Coal Co., 88 W. Va. 158, 106 S. E. 448; Dickinson v. Colliery Co., 71 W. Va. 325, 76 S. E. 654, 43 L. R. A. (N. S.) 335; Swope v. Coal & Coke Co., 78 W. Va. 517, 89 S. E. 284, L. R. A. 1917A, 1128, and kindred cases.

Where the father consents to the employment of his son under 16 years to work in a mine, he cannot recover for the death of the boy resulting from the ordinary risks of the employment. He waives the statutory negligence of defendant in employing the son. Under the statute the mere fact that the minor is injured or killed while in the employment makes a prima facie case of negligence against the employer. Norman v. Coal Co. 68 W. Va. 405, 69 S. E. 857, 31 L. R. A. (N.

S.) 504; Bobbs v. Morgantown Press Co., 89 W. Va. 206, 108 S. E. 879. The violation of the statute is considered the proximate cause of an injury which is the natural, probable and anticipated result of the employment. The minor does not assume the risks incident thereto including the risk of injury by a...