*1 John D. Brewer
v. Appalachian al. et Constructors, Inc.,
(CC 780) Submittеd April 1951. Decided 1951. May Fox, Judge, concurs. Don Morgan,
Albert M. J. (cid:127)Eddy, for plaintiff. Fumich, Jaco, George Jr., M. & Hardesty, Furbee Jesse Jr., H. Furbee, Lemley, L. C. Fred L. Hardesty, Russell , for defendants. Judge:
Given, Plaintiff, Brewer, D. in this on trespass John action of case, Monongalia in the Circuit instituted Court County, seeks recover damages Appalachian Zeni, Constructors, Inc., a and Victor its em- corporation, *2 a The American Oil and ployee; Company, corporation, Dаle Com- Mayfield, employee; and Christopher-Coal its pany, Hinerman, a corporation, Guy employee. and its injuries recovery The for which seeks resulted from an dynamite of on al- explosion December leged to have been caused acts of defendants. The separate filed the declara- demurrers tion, one of grounds of the several demurrers joins, several alleges, improperly declaration and The action, causes of and defendant. misjoins parties trial court and of the sustained each several demurrers “1. certified questions: to this following Court Whether in a misjoinder parties there action exists this defendant. of action allege 2. Does the a cause Declaration defendants, them?” any Christopher from the declaration
It appears “known the owner of certain premises was Coal Mine”, and Monongalia County, 4 in as the Brock No. -company, with coal that, agreement” “pursuant Constructors, Inc., was, the time of at the Appalachian a the construction vertical engaged in explosion, house buildings, air Two the sand premises. shaft on the about four distant each shop, and machine feet other, house, were The sand premises. situated on the feet, feet block by twenty-four about sixteen cement floor, construction, by Appalachian a sand was used with connection with its in construction Constructors' approximately thirty air machine was shop shaft. The construction, and feet, feet of cement block by sixty its employees, used and office, for storage including plaintiff, shop tools of coal There was equipment company. in tank of gasoline storage located house a sand Oil property Company. American gallons capacity, There was also situated in the sand stоve, house heating wherein a fire was at the burning time of the explosion. The declaration charges Appalachian Constructors and its employee “carelessly, did recklessly, injuriously law, contrary to violation and disregard statute of the State of Virginia West prohibiting stor- age of powder or other explosives in or near mine build- ings, have stored in said sand house building day on the and year a large aforesaid ex- quantity powder and plоsives, therefor, to-wit, in cases' fifteen dyna- hundred mite caps and three dynamite hundred sticks of com- posed dangerous chemicals”, these defendants also kept stored in the large sand house a quantity gasoline.
Pursuant to an order from the Appalachian Construc- tors, the American Oil Company, through its employee, Dale Mayfield, delivered quantity of gasoline into the storage tank in the house, sand that a knowledge fire was burning the heating stove therein.
livery of gasoline into the tank storage made *3 means of a hose truck, from a tanker running elevated on a ramp, through an opening house, in the roof of the sand into an opening in the top tank, of the storage the flow of the gasoline being by gravity. After the hose from the tanker truck was so connected to the tank storage and the valve of the tanker truck the opened, the American Oil Company “did negligently, carelessly, recklessly and injuriously walk away from said tanker truck with said valve open, allowing, and providing per- mitting gasoline to flow from said tanker truck through said hose into the gasoline storage house, tank in said sand flow, gravity until the storage said tank in said sand house became full building gasoline, of said and said gasoline did thereby and run over overflow said storage tank down on to and upon said cradle structure and floor, the upon said sand house and run over about and floor house, the of said sand and about the lighted said and coal burning stove, and heating gas fumes and vapor permeate did the interior the said sand building,” house stove; fire ignited
and from the and after the gas- ignited, “negligently, oline had did recklessly, carelessly and drive said tanker truck said injuriously away house building closing sand without said valve uncoupling said from the rear of said tanker hose truck,” thus to flow causing permitting gasoline and walls, house, on through hose into sand over its roof, to wooden structure that and supporting heat from the and burning gasoline building caused tank storage explode, “detonating exploding to and the dynamite”. alleges
The declaration Coal Com- through Hlnerman, its “outside pany, employee, Guy its foreman”, saw and had actual of 'the fact knowledge defendant, Appalachian Constructors, had illegally dynamite, stored the dynamite-caps, large and quantity house, gasoline said sand and that coal “burning house; fire” then in the sand no plaintiff had facts; knowledge of such the Christopher Coal Com- pany Guy and Hinerman carelessly, “did in- negligently, juriously, deliberate intent to kill or injure omit plaintiff, and fail to have explosive and inflam- dynamite gasoline mable removed from the sand house and did fail and omit to danger warn plaintiff house, risk to in or plaintiff near the sand that after the neg- sand house was aflame that defendant ligently, carelessly, injuriously, and with intent deliberate ordered, instructed, dirеcted, or kill plaintiff, en- suffered, couraged, allowed permitted plaintiff go into the for shop building” machine of sal- purpose therein. vaging tools While attempting salvage tools the explosion severely occurred injured him. cause of proximate alleged this
language: “This that all of alleges injuries said and losses sustained him were are the caused and direct and result of proximate joint and concurrent each, and negligence carelessness of all of every and said defendant, and the deliberate intent Christ- said Hinerman, Guy and its opher agent, Coal Company aforesaid, fault or any neg- so without plaintiff, on-the ligence part plaintiff.” declaration, sets out containing only,
The one count Appa- in much more the facts outlined above. detail a misjoinder lachian Constructors there is contends of ac- resulting misjoinder from causes parties, tion; wholly the several acts of were negligence other, giving separate of each rise to several independent action; that, therefore, and distinct causes of and alleged negligence of Constructors did Appalachian immediately or cause the directly injury, such acts joint concurrent constituting negligence. or It also con- alleged tends that of American Oil Com- negligence ’ cause”, efficient or pany “intervening sole The proximate cause of American Oil Com- contends that several acts of pany negligence alleged distinct”, and there was no “con- “separate, The community certed action between responsibility American Oil and other defendants”. The po- is that “several sition of action” are alleged improperly and different causes of that, joined subscriber workmen’s fund, liability it is released or relieved compensation plaintiff. question facing as to the therefore, Court, alleged negligence whether acts of action, or constitute and distinct causes of separate proxi- whether constitute the immediate together they one cause of injury, creating only cause of mate action. appears it alleged sufficiently
From the facts its Constructors Appalachian. acts of the gasoline, storing dynamite in the the fire building wherein dangerous agencies, there- of the explosion, to the instant burning, continued directly immediately contributing fore have been should explosion That the fire and plaintiff. *5 744 were
anticipated foreseeable these can not Neither it be doubted. can be doubted anticipated fendants should have result would in or near the in persons buildings the event of such At explosion. an the time explosion negli- fire caused gently acts of American Oil its still burning, negli- was and without which gence gasoline tank or would have dynamite Such fire also im- exploded. undoubtedly directly and That fire mediately contributed to the explosion. tank an- explosion gasoline have should been clear. The ticipated by these defendants seems acts the Christopher and its employee also continued to the time of the and contrib- explosion, uted directly and thereto. In such circum- immediately stances there can be one сause of proximate injury, but and one sepa- cause action. The several distinct and rate negligence, concurrently, acts of consti- operating tuted the “The proximate negli- cause gence the defendant need not be the cause sole it it injury, sufficient that was one of the efficient thereof, have causes without which the would not resulted; but it must appear negligence least sought to for person charged responsible at S., J. one of in the 65 C. resulting injury.” the .causes Negligence, Section 110.
We think conclusion of the supported Court is Com Telephone made clear authorities. following 884; pany Company, 736, Sand 131 50 S. E. v. W. Va. 2d Tawney Kirkhart, 550, 634; 130 44 Gil v. W. Va. S. E. 2d 188; Co., 649, kerson Railroad v. 129 W. Va. 41 S. E. 2d Sigmon 591, 636; Mundy, v. 125 W. 25 S. E. Hains Va. 2d Co., 923; v. Railway 613, 75 Va. 84 S. E. Johnson v. W. Chapman, 639, 43 28 E. W. Va. S. 744. See Restatement Torts, 882, 1 Redfield, Section Negli Shearman and (Revised 39; Actions, gence Edition), S., Section 1 C. J. Section 65. Defendants like rely upon cases Wеbb v. Sessler, 341, 65; 135 W. Va. 63 S. E. 2d Beuke v. Mining Co., 141, 132; 100 130 E. Farley W. Va. S. Coal & Coke v.
745
Co.,
595,
933;
265,
85 W.
102 E.
9 A. L. R.
Va.
S.
Anderson
Co.,
&B. O. Railroad
579,
v.
W. Va.
S. E.
51 L.
(N.
888;
S.)
Dyer
Hutchins,
R. A.
v.
87 Tenn.
10 S.
194;
Davis,
W.
and Jennings
4th).
(C.
v.
In the Farley case differеnt mining corpora- six coal tions, operating other, stream independently of each up farm, from the plaintiff’s were sued for jointly polluting stream by refuse, therein casting cinders and other thereby causing farm Here injury plaintiff. to the the causing injury acts of the several the * “* * clearly separate were injury distinct. and the the acts, has merely suffered from such a is consequential result the coincident and contemporane- * * ous torts and not direct immediate one
In the Anderson company case defendant railroad car had delivered on a to be empty freight spur track Both defendants knew company. coal .loaded defective, having escaped the car were the car brakes on day previous because the defective brakes and coal under- Agents run down an incline. company for took move the car to coal when loading to tipple brakes, in- again loose, it because of defective broke “the between juring Where causal connection plaintiff. broken, act and the is the last negligent injury first act, in as the sole cause legal contemplation, regarded the last injury. cause thereof is proximate without negligent contributing act thereto and which case, as not In the would have resulted.” instant out, connection” previously pointed “causal brokеn, for all continued negligent several acts was and contributed
In owners Dyer dogs case different belonging made killed The statute plaintiff. sheep belonging did injuries, for but dogs owners liable such sued dogs could be provide that different owners a dog jointly. The out that owner Court pointed there- for the his only dog, was liable done dogs. In fore not be of other could sued owners but injuries, case there was not a series of instant one acts defendants. injury resulting оil Jennings company oper-
In the defendant case *7 Oil by line owned premises ated an oil over plaintiff. of a out blowing from the line because escaped a and a black- saturating ground near barn gasket, a under the shop, forming pool smith blacksmith Cross,- one shop. shop operated by The blacksmith was or of or de- plaintiff ‘not control employment under Cross, of the oil about the build- knowing shop fendants. a fire in the heated in the a ing, lighted shop, forge piеce iron, hot, of red iron, piece a of while dropped oil, a crack the floor into the through which rolled building a fire destroyed shop and started which and im- Here the act Cross was direct barn. injury, independent intervening mediate cause “An agent, for which the were not responsible, a as matter law and the proximate cause of loss”. plaintiff’s Coal and its con-' employee also right 23-4-2,
tend that the of action existing Code, under аmended, as to an relating an with employee intent, deliberate statutory action, is cause of and can joined action, be common law the instant action, so far as coal company and its employee concerned,' are “for being only an of damages excess over the amount or received receivable under the act.” The “* * * pertinent part of the statute is: If injury or death result to any employee frоm deliberate intention of his employer produce such injury death; or the em- ployee, widow,, widower, child or dependent of the employee shall have take privilege to this under chapter, shall also have cause against of action employer, if chapter enacted, this had not been for any of damages excess over the amount or re- received ceivable under chapter.” We this the opinion, hоwever, that the statute em- merely preserves unto an law right his common of action to sue ployee for such wording requires the statute con- this S., Actions, clusion. .1 See C. J. Section 67.
The Christopher and its also they joined contend that can be with the other de- action, in this fendants for the reason there can be only judgment herein, one arguing that any judgment rendered them would-necessarily by reduced the sum received or receivable from the сom- workmen’s fund, pensation any judgment against other defendants would not be reduced A such sum. familiar law, requiring no citation principle authorities, is that a have only recovery can one for an injury. We see reason rule why no should not apply where recovery partial recovery is of an way award the workmen’s fund. compensation It is also well settled injured “Partial person satisfaction one satisfaction, joint tanto, pro tоrt-feasor all.” as to *8 748 46, S. 5, Eary, Co. v. 115 W. Va. 174 syllabus,
Point Coal partial E. rule also where apply pay- This should 573. from the ment for the has been made workmen’s tort joint on account of one fund compensation a thereto. being feasors subscriber the is raised demurrers important question Another Are employee. and its to relating “deliberate the declaration allegations “injure to intent” of the coal and its company to maintain or kill to allow plaintiff” рlaintiff sufficient was, time action, notwithstanding at the company com- injury, paid subscriber to workmen’s Code, 23-2-6, as fund? The pensation provisions to amended, as liability relieve the coal from company pre- to unless the cause action plaintiff, Code, 23-4-2, amended, sufficiently pleaded. served to We look to the whole of the determine declaration this, that merely the conclusion ultimate fact injure the injury was inflicted with deliberate intеnt to or kill.
In 114 Va. Contracting Company, Collins v. Dravo W. detail, 229, 757, charged, E. much 171 S. the declaration to in an that decedent work plaintiff’s defendant caused being where a had broken excavation made bank momentarily cave in where a of the bank was expected; had many previously; the bank caved in times to work required where place plaintiff or than death and that “nothing trap”; more less de- place fendant caused to wоrk in “with injure In discussing liberate intent” kill him. “* * * the Court do point there involved stated: We say deliberate intent can be inferred merely facts set hold up this declaration. We evidence, admit in addi- allegations sufficient tion intent. to the alleged, to the facts to show such As law, averment conclusion we think it is averment an ultimate fact.” Co., In E. Maynard v. Coal Va. 175 S. W. decedent plaintiff’s stumbled over a protruding bolt in of a conveyor, cover fell into conveyor аnd was killed. declaration charged that defendant knew *9 the great danger of conveyor the out covering being of “ repair and that ‘the danger coming of it momentarily open course of its operation, thereby the exposing buckets or carriers was so that apparent the said de- fendant, at times, all had notice and charged was with notice that the where the place plaintiff’s decedent was to required work was mоre or a nothing less than death that trap’; willful, deliberate, the defendant through its and unlawful in to negligence conveyor the permitting become open thereby and the bolt to improperly protrude disregarded its duties to the plaintiff’s decedent ‘with ” deliberate intent to him.’ In Point 1 of the syl- “* ** labus the Court held: in a declaration Allegations of of gross negligence acts the not con- employer do the stitute deliberate intention of meaning within said statutory provision. To a within said bring case at provision, least, facts very alleged there must be from rea- which the natural probable consequences and sonably to or would be death serious anticipated to employee affected thereby.” Co., 612, Allen 631,
In 186 E. Mining v. 117 W. S. Va. while plaintiff injured on the front riding end cars, mine in contact with a trip empty by coming door, day wooden installed before trap before the Court whether evidence question intrоduced to the ver support was sufficient dict toas deliberate intention of defendant to produce insufficient, the injury. The Court held evidence from Jenkins Carman Man quoted approval v. ufacturing Co., Ore. 155 A. Pac. 11 N. C. C. “ 547, as follows: ‘The (mentioned deliberate intent the complaint) follows allegation as deduction from the of knowledge carelessness, danger negli gence obviating recklessness the defendant in not In our it. than opinion no further allegation goes that charge defendant with full knowledge
defect, took carelessly, negligently recklessly the risk * * * of its A act is one injuring plaintiff. deliberate are in the mind be- consequences weighed which It meditation, forehand. is prolonged and the word when used connection with an to another denotes * * * design malignity of heart. think We that the words injury” “deliberate intention to produce meant that imply lawmakers the employer must have to injure detеrmined and used some means end; appropriate there must be intent, specific merely negli- carelessness gence, however gross’.”
We in the instant opinion case charge of intent” “deliberate “a necessarily only knowledge dangers duction allegations carelessness, and the negligence and recklessness it”,. and, therefore, defendant in not obviating suf- *10 ficient to show deliberate intent to or kill. “Gross negligence is not tantamount intention’ to ‘deliberate injury. carelessness, inflict It may be indiffer- ence negligence an employer may be so wanton judicial as to warrant a determination his ulterior intent inflict But in the very nature things, finding which would showing warrant such would clear and high degree. have be forceful in Even in case, supra, the Collins the incrim- notwithstanding inatory and nature of its held revolting allegations, we merely ‘that the are allegations sufficient to admit evi- dence, in addition to thе facts such alleged, to show ” Maynard Co., intent.’ v. Coal supra.
The rulings circuit court sustaining defendants, Constructors, murrers of the Appalachian. Inc., Zeni, Victor The Dale American Oil Company Mayfield, reversed, are and the of that court rulings defendants, sustaining the demurrers of Christopher Coal Hinerman, Company Guy are affirmed.
Rulings part; affirmed in part; reversed remanded. case Fox, President, concurring in result: case,
I the result concur in reached this аnd I do disagree with the reasoning opinion prepared However, Given. I reach the same re- Judge would sult on of reasoning, liability line far as different so Coal Christopher Company is involved in this action. In my liability, if opinion any, exists under a statute and relation negligence has no whatever to the with which the other charged. Coal Company immune suit on account such negli- gence reason of subscriber to the Workmen’s I Compensation Fund. do not think thе other defendants joined action can be with the Christopher Coal which, in an Company action based their negligence, On clear, it is is separate and distinct from act or any conduct it could Coal under which liable. The opinion permit made as written will plain- tiff to amend his a way permit declaration in such as to him to maintain action Appalachian his Con- structors, Inc., the American Oil Chris- topher I Company. do not think can be done. this Snyder
Franklin v. Co., al. et
Baltimore & Railroad Ohio (No. 10321) Submitted 1951. Decided 1951. April May