Opinion
No. 5825
Submitted May 3, 1927.
Decided May 31, 1927.
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 and Houston G. Young, for plaintiff in error.
Shaw Shaw and Poffenbarger, Blue Dayton, for defendant in error.
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 $8,000.00 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 track-layer 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 in the "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 Frank 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, that 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 express 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; 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 Thomas, Guardian v. Northwestern Imp. Co. and Cadwell, 102 Pac. (Wash.) 402; Harbin v. So. Ry. Co. et al., 68 S.E. (Ga.) 1103; Sipes v. Puget Sound Elec. Ry. Co. et al., 102 Pac. (Wash.) 1057; McGinnis v. C. R.I. Pac. Ry. Co. et al., 98 S.W. (Mo.) 590; Stevick v. N. P. Ry. Co. et al., 81 P. 999; Lippencott Glass Company v. Indiana Co. et al., 75 N.E. 649; and Doremus v. Root et al., 63 P. 572, 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 Gratt. (Va.) 243. Where the servant's negligent act is the sole cause of the complaint, and no negligence is imputable to the master other than from the servant's act, then excuse or justification of the servant also excuses the master. This is illustrated in Sparks v. Atlantic C. L. R. Co., 104 S.C. 266, 88 S.E. 739, where a railroad conductor ejected a trespasser from the train, causing death. The railroad company and conductor were sued jointly, and the jury found in favor of the conductor and against the company. The appellate court held the verdict bad because the death was caused by the sole act of the conductor, and if he was not guilty, his principal could not be guilty. Likewise in Indiana N. T. Co. v. Lippencott, 75 N.E. (Ind.) 649, the action was brought for damages against the master (Ind. N. T. Co.) and Stephen A. Clarke, its servant, to recover damages alleged to have been caused by Clarke, the servant, an employee, in "shooting" a well with nitroglycerine. The verdict was against the master and silent as to Clarke. The court set it aside on the ground that there could be no negligence on the part of the master, if there was none on the part of the servant. Reason upholds these decisions. But if the master as well as the servant has been negligent, and the injury received is not caused solely by the servant, it is held that a verdict against the master alone will be upheld. Carson v. So. Ry. Co., 46 S.E. (S.C.) 525; Bedenbough v. So. Ry. Co., 48 S.E. (S.C.) 53; Mining Co. v. Robinson, 150 Ky. 707, 150 S.W. 1000. It seems that Texas has refused to adopt the rule laid down in the South Carolina, Washington and Indiana cases above cited, in Gulf, etc. R. R. Co. v. James, 73 Tex. 12; and Montana has done likewise in Verlinda v. Stone 44 Mont. 223.
We do not think that Jarrett's alleged negligence in allowing the boy to work was the sole cause of Tony Will's death. It was unlawful for the Coal Company to employ this boy in its mine at any service. It was unlawful for Jarrett to permit him to work therein. Jarrett said he required an affidavit from the father as to the age of the boy, and afterwards a mine inspector required another affidavit, and it may be that the jury considered that Jarrett was excusable, having attempted to do what he thought was sufficient in that regard, but that the Company was not excused from the peremptory requirement of the statute which says that no child under the age of 16 years shall be employed or permitted to work in any mine. It was the duty of the Company to see that no child under the prohibited age worked in its mine, and it could not escape that duty by delegating its performance to one of its employees. The superintendent knew the boy was working. He was at work when the mine was taken over by defendant Company. The Company was charged with knowledge of his unlawful employment. If the injury is the result of concurrent negligence on the part of the employer and his servant, the injured party may recover against both or either. Wade v. McLean Contr. Co., 149 N.C. 177. See Anno. Cas. 1915 C, p. 187, and note. Moreover, we do not find that any objection was made to the verdict when it was returned, and generally a failure to object to an informality in a verdict before the jury is discharged is a waiver of the defect. See Carrico v. Ry. Co., 39 W. Va. 86.
Verdicts must be construed liberally, and the jury would have been warranted in finding that the unlawful employment of the boy was the proximate cause of the injury. Where a child under the statutory age of employment is injured while unlawfully employed, a prima facie case of negligence is established. Norman v. Coal Co., 68 W. Va. 405; Daniel v. Coal Coke Co., 68 W. Va. 490; Mangus v. Coal Co., 87 W. Va. 718; Bobbs v. Press Co., 89 W. Va. 206. We find nothing in the defense (if the boy's age was not 16 years) which rebuts the prima facie case of negligence, except that he was of such intelligence, experience and precociousness as to take him out of the class of children prohibited by the statute from being employed, and therefore was capable of contributory negligence. The jury found against that defense under the special interrogatory.
Nor can it be said that the jury has found that the employment of the boy as a snapper was not the natural, probable and anticipated cause of his injury and death. The second interrogatory contained two questions and required a yes or no answer. It was misleading and confusing. It was stated as follows: "In the event the jury should answer the above question (question No. 1 requiring them to answer if Tony was 16 years of age) 'No', then the jury should answer this question: Was the unlawful employment of Tony Wills to work as a 'snapper' or brakeman in the coal mine of Montfair Gas Coal Co., both acquiesced in, or consented to, either expressly or impliedly, by John Wills, the father, and the natural, probable and anticipated cause of the injuries and death of Tony Wills? Answer (Yes or No)". The answer was "No". The jury could have answered "No" to the question of consent of the father, and "Yes" to the question of the unlawful employment being the natural, probable and anticipated cause of the death, or vice versa; or it could have answered "No" or "Yes" to both questions. That it has answered "No" does not necessarily imply that the jury found the unlawful employment was not the natural, anticipated and probable cause. The interrogatory was propounded as a single question to be answered by "Yes" or "No". The third interrogatory refers to the second as a single question. This special finding is not irreconcilably in conflict with the verdict, based as it might have been, and probably was based, upon a conclusion that the verdict was against defendant Coal Company because of the employment of a boy under 16 years in a coal mine. Responses to special interrogatories to be inconsistent with a verdict must exclude every conclusion not in accord with the verdict. Anania v. Ry. Co., 77 W. Va. 105, 87 S.E. 167, L.R.A. 1916 C 439. We cannot say that the verdict is based solely upon the alleged negligence of Jarrett, the mine foreman, and therefore, being silent as to him automatically acquits the Coal Company.
As before observed, the liability of defendants is based on the unlawful employment and consequent injury; that while the father did consent to the employment of his son as trapper, he did not consent to the transfer to snapper, and is not prohibited from recovery as contributing to the injuries, being sole distributee of the boy's estate; that defendants failed to provide a safe place to work and reasonable rules by which to work; and the employment of an incompetent and unskilled motorman through whose negligence the injuries and death occurred. The defenses were that Tony was 16 years of age; that the father consented to the employment as snapper; that Tony, if under the prohibited age of employment, was precocious and experienced and removed from the class of boys prohibited from employment under the statute, and was therefore guilty of contributory negligence; and that defendants were not guilty as charged. The jury found that the boy was under sixteen; that he was not precocious to the degree of taking him out of the inhibition of the statute; that the father did not consent to the employment as snapper; and that defendant Coal Company was liable. The special interrogatories were designed to require the jury to deliberately examine, patiently consider, and definitely find controlling facts so that the very right of the case could be reached. Having found these controlling facts as they did, the liability of the defendant flowed therefrom and called for a verdict in plaintiff's favor. If Tony was 16 years of age or over, or of such intelligence and experience as to preclude recovery because of contributory negligence, it was of little moment whether the motorman was inexperienced and reckless, for defendant was protected under the Workmen's Compensation Act, unless it wantonly and willfully caused the death; and there is no evidence that the death was willful or designed on the part of defendants. On the other hand, if Tony was under the prohibited age, was not precocious, and the father did not consent, expressly or impliedly (controlling facts found by the jury), it was of little moment or importance whether the motorman was inexperienced or acted recklessly, for under the statute prima facie negligence was shown, and it was not attempted to be rebutted by defendants. Defendant's evidence of the injury shows that the boy did not appreciate the danger of riding on the bumper, and refused to obey the injunctions and warnings, a situation which the statute was designed to prevent. It confirmed instead of rebutted the prima facie case. The purpose of the statute is to preserve life, prevent children from being subjected to danger which they cannot appreciate, and save them from injury through childish curiosity, indiscretion, heedlessness, and negligence. Our decisions referred to hold that the unlawful employment is prima facie the proximate cause of the injuries thus received. Wherefore, we are not much impressed with the efforts of plaintiff to show incompetency and recklessness on the part of the motorman, or the effort of defendants to prove his competency and lack of carelessness. We may observe, in this connection, that while there is some evidence that the motor was operated at a speed of from 15 to 18 miles per hour on the occasion of the death, there is other evidence that the motor was so geared that it could not travel faster than 10 miles per hour with a load of five cars. It was pushing one empty car at the time of the accident, the track was level, in good repair, and on practically an even grade. It was also shown that derailments of cars and motors in the mines are of frequent occurrence, brought about by innumerable causes, such as a lump of coal on the track, and were of ordinary occurrence in this and other mines. It is one of the common, usual and anticipated dangers. Neither the track nor motor was out of repair.
The charge in the declaration that the motorman, Sam Folio, was incompetent, and operated the motor recklessly and at a dangerous speed has some support in plaintiff's evidence. He had a short while before been promoted from snapper to motorman, and another workman had refused to work with him because he was afraid of the way he operated the motor. Complaints had been made to the officers of the Company in charge of the operation, by some of the workmen. On the other hand, defendants produced evidence that Sam was competent, and could not have driven the motor at an excessive and dangerous speed.
The alleged negligence of the motorman as the proximate cause was relied upon to meet a possible finding by the jury that the father had consented to the employment as a snapper; for even though the parent consents, he is not precluded from recovery if the injuries are not the direct and proximate result of the unlawful employment, but are proximately caused by some act of negligence of the master, such as failure to provide a safe place to work. Irvine v. Tanning Co., 97 W. Va. 388. Instructions were given the jury to the effect that even though they should find that John Wills, the father, consented to his son's employment as a snapper, he was not barred from recovery unless they found that the unlawful employment was the proximate cause; but if they found that the death was caused proximately by defendants' failure to furnish a reasonably safe place to work, or reasonably safe appliances, or by employing a reckless or incompetent motorman, then the defendant Company was liable, unless they further found that the boy was possessed of such wisdom, experience and sagacity as to take him out of the class of boys under 16 years of age, and was guilty of contributory negligence. These instructions are criticized, and justly so, for there was no evidence of an unsafe place to work. It was reasonably safe for a mining operation. Nor was there any evidence that the appliances were not reasonably safe. An instruction should not be given where there is no appreciable evidence to support it. They are also criticized because they do not tell the jury that defendant employed an incompetent motorman knowing him to be such. But what harm was done by them? They only applied to meet a possible finding that the father consented to the employment as snapper, and the jury has found that he did not consent. The jury found a fact which took from it any necessity of considering these instructions. They were harmless inasmuch as the principle they sought to apply had no application, when the jury found the father did not consent to the employment. That finding, coupled with the finding as to age, impelled a verdict.
It is argued that the father is precluded from recovery as a conclusion of law because he consented to the employment of his son in the mine as a trapper, and the principle is invoked that where the facts are undisputed and a clear case of contributory negligence is shown, the court must instruct for defendant, as enunciated in Slaughter v. Huntington, 64 W. Va. 237; Shriver v. County Court, 66 W. Va. 685, and Krodel v. Ry. Co., 99 W. Va. 376. The theory upon which a parent is precluded from recovery where he consents to such unlawful employment (being sole distributee), is that he is guilty of contributory negligence barring recovery in thus giving consent. While the father did consent to employment of his son as trapper, he did not consent to his employment as snapper, but, on the contrary, strenuously protested against it. It appears that the position of trapper is comparatively safe to that of snapper, the latter being very dangerous. The initial negligence in the employment coupled with the later negligence of the mine foreman in placing the boy in a dangerous position in which he was killed by one of the usual and common accidents incident to that dangerous employment, relieved the father from the negligence which proximately caused the death. The dangerous employment brought about the death, and not the employment to which the father consented. The father's negligence in permitting the boy to be employed as a trapper was remote and incidental, and did not proximately contribute to the injury. It is quite generally held that where the parent consents to the employment of his minor child to perform a particular kind of work the employer is liable to the parent for injuries sustained by the child in the performance of another and more dangerous kind of work required by the employer. Haynie v. Power Co., 157 N.C. 503, 73 S.E. 198, 37 L.R.A. (N.S.) 580, Ann. Cas. 1913C, 232; Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 So. 914, and cases there cited; 29 Cyc. p. 1640, par. 6, citing Gulf etc. Ry Co. v. Redeker, 67 Tex. 190, 60 Am. Rep. 20. In Powhatan Lime Company v. Affleck's Admr., 115 Va. 643, it was held that where the father had consented to the employment of his minor son in a non-dangerous department of the employer's plant only, and the minor was afterwards transferred to dangerous duties in the performance of which he was killed, it was negligence on the part of the employer to expose the boy to dangers different from those incident to the contract of employment. In accord is Satchell v. McNair, 189 N.C. 472 (1925), 127 S.E. 417. Where the father had been informed that his minor son was in the employment of a coal company and made no protest, we held that it would not be presumed that he knew the boy was actually in the mine at a dangerous work, and that a verdict relieving the father of contributory negligence, as upon implied consent, would not be disturbed. Waldron v. Coal Co., 89 W. Va. 426. Defendants gave an instruction to the effect that if the jury believed the boy to have been under 16 years, and that the father consented to his employment as snapper, and that the death was the natural, probable and anticipated consequence of the unlawful employment as snapper, then the verdict should be for defendant. The question of contributory negligence of the father was placed squarely before the jury; and we cannot say as a matter of law that the consent to the employment as trapper constituted contributory negligence on the part of the father. It was not error to refuse defendant's instruction No. 19 which would have told the jury that the father, by consenting to the employment as trapper was guilty of such contributory negligence as would impel a verdict for defendants. In holding the declaration good upon demurrer, when certified to us, in 97 W. Va. 476, we held that the second count was good because it alleged that the transfer of the boy from trapper to snapper, coupled with the negligence of defendant in knowingly employing an incompetent motorman whose negligence in operating the motor proximately caused the injury, we did not pass upon the question whether the consent of the father to the employment as trapper prevented recovery. It was unnecessary to do so, for the gravamen of that count was the negligence of the incompetent motorman. That was sufficient to sustain the count on demurrer. The fact that a father who consents to the unlawful employment of his minor son in a coal mine, has violated the law and is subject to penalties, does not prevent recovery where the death is not the natural, probable and anticipated result of his consent.
Was error committed in arriving at the findings of fact which controlled the verdict? The first controlling fact was raised under defendant's special plea No. 1 and propounded by special interrogatory No. 1. Was Tony over or under 16 years of age at the time of his death? Error in the ascertainment of this fact is alleged because the court allowed plaintiff to introduce witnesses in rebuttal who stated that while they did not know his age in years, he was of small stature, of mediocre intelligence, not precocious, and had the appearance and demeanor of a boy less than 16 years of age. It is argued that this evidence was evidence in chief and should not have been admitted on rebuttal. Defendants had introduced evidence of the boy's age as gathered from alleged affidavits and statements of the father, coupled with the general appearance of the boy and his mental capacity to comprehend instruction as to danger, in short, evidence to take him out of the class of boys who are prohibited from employment in coal mines. The evidence complained of was to rebut, and may have trenched upon evidence which would have been proper in chief. Defendant could have met this evidence after it was introduced if it saw fit, but did not do so. The order of introducing testimony is largely in the discretion of the trial court, and a verdict will not generally be disturbed unless it clearly appears that prejudice has resulted therefrom. State v. Williams, 49 W. Va. 220. Even where evidence was not admissible at the time of introduction, if subsequent developments make it admissible a verdict will not be disturbed because of such premature introduction. Goodwin v. Tony Pocahontas Coal Co., 88 W. Va. 49.
Another point of error is that when plaintiff was examined as a witness he was allowed to place in evidence a receipted bill for funeral expenses of the deceased boy, in favor of Harmer Son, amounting to $225.50, over the objection and exception of defendants. Plaintiff had told of an effort on the part of Holt, defendant Company's superintendent, to have him sign a paper making application for compensation out of the Workmen's Compensation Fund, in which paper was contained the statement that the boy was 18 years of age at the time of death, which paper the witness refused to sign on account of the statement of age therein. The paper, not signed, was filed in support of his evidence. He said that Holt in that connection furnished him another paper, being a bill made out by Harmer Son, Undertakers, against the Compensation Fund for funeral expenses to be certified to by him to the effect that the services had been rendered and not paid for. This paper the witness refused to sign, and tendered it in evidence, stating that he had paid the funeral expenses himself. He had theretofore testified that the boy was killed, and that he had buried him at Shinnston, Harmer Son acting as undertakers, whom he paid. As evidence of the payment to them he offered the receipted bill from them, the introduction of which is the error complained of. Defendants say the receipted bill has no place in the case because it was not an element of damage and had no bearing upon any issue. Plaintiff's counsel would sustain its introduction on the theory that it was a part of the history of the case. The declaration does not ask for special damages. Any sum recovered for the negligence is not subject to the debts of the deceased, and the father was personally liable, the son being a minor. The purpose of the evidence is not clear, except to buttress plaintiff's statement that he had buried Tony and had paid the funeral expenses, and had not made application for payment to the Compensation Commissioner. No instructions were based on funeral expenses. It had little if any probative value. While it would have been better to have rejected it, we cannot see that its introduction was prejudicial.
Other errors assigned relate to evidence admitted and instructions given upon the incompetency of the motorman and his alleged negligence in the operation of the motor. In view of the special findings, we deem this phase of the case of little importance; for if Tony was not 16 years old, nor of such intelligence and precocity as to remove him from the class of children protected by the statute; and if the father did not consent to his employment as snapper, all as found by the jury, defendant was liable irrespective of the alleged negligence in the employment of an incompetent motorman and his negligence and carelessness in operating the motor.
The judgment is affirmed.
Affirmed.