93 W. Va. 636 | W. Va. | 1923
The two questions certified relate, (1) to the action of the lower court in overruling defendant’s demurrer to plaintiff’s declaration, and (2) permitting defendant to file two special pleas.
The declaration contains three counts, in the first of which common law negligence resulting in the injury of plaintiff is charged, and there is no allegation that defendant had not at the time of the accident complied with the workmen’s compensation law. Plaintiff, in the lower court, and here, admits that the count is not sufficient, for that reason. The other two counts in effect charge that defendant, on the 14th of March, 1921, was the owner and operator of a drift coal mine in Raleigh county, and was mining coal therefrom; that in the conduct of its business it employed a large number of men including plaintiff; that it failed to employ a competent mine foreman, and in consequence thereof the mine was operated in an unlawful and incompetent manner, and that defendant permitted the air course in the mine to become blocked with coal and debris which interfered with the ventilation so that it did not afford one hundred cubic feet of air per minute for each person therein employed, as provided for by the mining law, and by reason thereof gas accumulated in the mine and exploded, whereby the plaintiff was injured while in discharge of his duty of mining at the face of the coal in the obstructed air course; that defendant unlawfully employed and permitted plaintiff to work while the air course was obstructed by coal so that it did not afford one hundred cubic feet of air per minute for each person employed therein; and by reason of its failure.to employ a competent mine foreman, and by reason of its negligence in allowing the air course to become obstructed by coal and the consequent accumulation of explosive gases, the explosion occurred, resulting in the injury to the plaintiff, for which he sues.
Defendant demurred to the declaration and each count thereof, which demurrer was overruled, whereupon defendant entered its plea of the general issue and tendered two
1. Does the declaration state a cause of action under the law ?
2. Are the facts set up in defendant’s special pleas numbered 1 and 2 or either of them sufficient in law to present a defense to the cause of action stated in the declaration, if any cause of action be therein stated?
Special plea No. 1 says that at the time of the alleged injury defendant was an employer within the provisions of the workmen’s compensation act and had at that time become a subscriber and had elected to pay into the workmen’s compensation fund the money required of it by law and had given the proper notice thereof to all its employees and had in all respects fully complied with the workmen’s compensation act and was entitled to the protection thereof. Special plea No. 2 reiterates the facts stated in special plea' No. 1, and in addition thereto says that plaintiff, prior to the institution of the suit, had applied for and received compensation out of the workmen’s compensation fund for the alleged injury.
Plaintiff insists that the second and third counts of his declaration are good and state cause of action without alleging therein that defendant, although an employer within the meaning of the workmen’s compensation act, had failed to become a subscriber to that fund, because, he says, that he was not an employee within the meaning of that act, being in the class of persons prohibited from being employed by section 9 thereof, which defines employers and employees subject to that act. The contention is that he was employed and permitted to work in a place in defendant’s mine where it was unable' to maintain at least one hundred cubic feet of air per minute, and therefore he was included within the class of persons prohibited by law from being employed. Sec
It is apparent that defendant is an employer within the definition given of such in the workmen’s compensation act. The allegations of the declaration bring it within that act. “All corporations * # * * regularly employing other persons for the purpose of carrying on any form of industry or business in this state * * * * are employers within the meaning of this act, and subject to its provisions.” The question before us and which is controlling is whether plaintiff is an employee within the definition of such in that act. There can be no question that he is unless he is within that class of persons designated as “persons prohibited by law from being employed.” If plaintiff is not within that class then-his declaration is demurrable because it does not aver that the defendant has not complied with the terms of the act by electing to take advantage thereof and paying into the fund as provided by law, and does not allege facts which take his case without the terms of that act. Louis v. Construction Co., 80 W. Va. 159; 92 S. E. 249.
We cannot see that that part of section 15TI of the Code, which provides that “No operator, agent or mine foreman shall permit any persons to work where they are unable to maintain at least one hundred cubic feet of air per minute,” places plaintiff within the class of persons prohibited by law from being employed as contemplated by the compensation act. It is a prohibition to the owner or operator of
We are of the opinion that plaintiff was an “employee” within the definition and meaning of that term as contained in the workmen’s compensation act, and as shown by the averments of the declaration, and was not within that class of persons “prohibited by law from being employed.” IJence the. declaration and each count thereof is demurrable because
Ruling in overruling demurrer, reversed.