178 S.E. 273 | W. Va. | 1934
Lead Opinion
This is an action of trespass on the case against Black Betsy Consolidated Coal Company, a corporation, and the county court of Fayette county, a corporation, jointly, for damages arising out of the destruction of plaintiff's real estate, improvements and personal property, located on the right-hand fork of Armstrong creek, in Fayette county, by reason of an alleged re-location of the channel of said creek above said property, and the alleged consequent diversion of the flood water of July 12, 1932. The jury found against the coal company, and for the county court. The coal company prosecutes error.
On the above mentioned date, plaintiff's premises were washed away by a flood. He alleged its destruction to be due to the fact that the normal creek channel, or bed, was *770 changed in 1927 and made to run nearer his property. This was caused by the construction of a road-bed in that immediate neighborhood. The defendant coal company claims to have constructed the road pursuant to an understanding with the county court that the same was to be built as economically as possible and that the county would later take over and maintain the road, and pay the company therefor.
The company urges chiefly that, in making the road, it was an independent contractor and the creek change was incident to the construction of the road; that the change did not leave a condition imminently and inherently dangerous to plaintiff's property, and when the road was taken over and maintained by the county court, the company's responsibility in relation thereto ended.
Plaintiff contends that the company was not an independent contractor, but if so, that the building of the road left a condition which constituted a private nuisance to plaintiff's property, thereby making the general rule, relieving an independent contractor when the employer takes over, inapplicable.
Under our decisions the test determinative of the relation of employer-independent contractor is whether the employer retains or has "the right of supervision." Rogers v. Boyers,
Plaintiff urges that the relation of employer-independent contractor could not exist because there was no legal, valid contract between the county court and the coal company, the agreement or understanding being merely verbal.
The test is whether the one who acted as the contractor could have enforced his demand for compensation for labor performed at the conclusion of the work against the county court. The court did not meet in its official *771
capacity when it entered into the agreement under which the contractor claims and acted. The contract was not entered upon the court's records, nor is there anything on the records regarding the same except the reference to the payment by the court to the defendant of certain desultory orders, no mention being made of the purpose for which drawn. The records aforesaid show absolutely nothing concerning the making, execution or completion of the contract claimed by the coal company. Under our decisions, such a claim could not be collected by operation of law. Barbor v. County Court,
Would the coal company, if in fact an independent contractor, be absolved of all liability by reason of the diversion of the water by a taking over of the work by its alleged employer? "The diversion of the water is a private nuisance."Roberts v. Martin,
The court in instructing the jury was very liberal with the defendants. Of the sixteen instructions asked on their behalf, nine were given. Those given propounded every recognized principle of the law which we believe to be applicable to their defense. The plaintiff offered one instruction relating to the question of nuisance, and two other instructions submitting to the jury whether the flood was an act of God. Every issue necessary to a correct decision in the case was submitted to the jury. We see no reversible error in the action of the court in this regard.
The fact that the court gave oral instructions to the jury during the admission of testimony, its ruling thereon is urged as error. From a careful examination of these matters we are unable to find error in its action in any particular. Such instructions are not erroneous because of the fact that they are not in writing. They are just incidents of the ordinary trial and perforce of this could not be put in writing.
A view was had of the premises. Courts have uniformly given the same great weight in upholding a jury verdict.
Other points urged by the plaintiff in error need not be considered, as the sole question of this writ turns on the liability of the independent contractor. The questions controlling the decision being jury questions, we must uphold the verdict.
Affirmed.
Dissenting Opinion
It seems to me that the legality of the contract between the defendant and the county court does not properly arise in this case. That was a question in which the defendant, the court and the taxpayers alone were interested. The plaintiff, as a taxpayer, could have raised the *774
question in a timely proceeding. But as a stranger to the agreement he is not entitled to do so at this late day, merely to advance a personal demand. The general rule is well established that "It is only the parties to a contract that have a right to question its validity." Woodruff v. Board,
Moreover, the defendant did not merely "claim" an understanding with the county court as the majority opinion indicates. The defendant proved the understanding by members of the court itself. (The omission to enter the agreement on the court's records did not of itself nullify the agreement. Barbor
v. County Court, cited in the majority opinion, does not so hold.) The changing of the creek channel was shown to have been not an act of indifference or carelessness on the part of the defendant, but a natural incident of the construction. The change was just as visible to the court as it was to the defendant or to the plaintiff. Yet after the change was made and the construction completed, the road was accepted and hard surfaced by the court, and has been used and enjoyed by the public ever since. While payment for the work was unenforceable, I cannot follow the majority view that "the act performed is unlawful." That no funds are available to pay for work authorized by public officials cannot make the worker a law breaker. Suppose the defendant had agreed to construct the road free of charge. No one would say that the defendant became a *775
trespasser simply because the construction was gratuitous. The following facts should not be ignored: the roadway was under the control of the court; the defendant worked on the roadway in good faith, under the authorization of the court; and the court accepted and appropriated to public use the results of that work. I cannot see that lack of funds to pay for the construction prevented the formation of a de facto relationship of employer and employee. A case illustrating my position isSmith v. Dryden, 15 Cal.App. Rep. 568,
An employee performing work in the manner of the defendant herein is an independent contractor. Greaser v. Oil Co.,
*776Therefore I respectfully dissent.