Karabalis v. E. I. Dupont de Nemours & Co.

129 Va. 151 | Va. | 1921

Sims, J.,.

after making the foregoing statement, delivered the following opinion of the court:

The questions presented for our decision by the assignments of error in this case will be disposed of in their order as stated below.

[1] 1. Did the Virginia employees liability act as contained in Acts 1912, p. 583, above copied, apply to the class of employees therein specified of a manufacturing corporation operating in the State a private railroad, merely as incidental to and in connection with its manufacturing plant and manufacturing business; or only to such employees of corporations operating in this State railroads used or authorized by law to be used as common carriers engaged in intrastate commerce?

We are of opinion that the first part of the question must be answered in the negative and the latter in the affirmative.

[2, 3]' The decision of the question depends upon the legislative meaning with which the words “every corporation operating a railroad in this State” were used in the statute in question. It is, of course, apparent that a literal meaning might be attributetd to such words which would embrace every corporation operating “every kind of road or way on which rails of iron are laid for the wheels of cars to run upon,” to use the language of one of the decisions on the subject, without regard to the character of the railroad as fixed by the business in which it is engaged. It is undoubtedly within the constitutional authority of the legislature in enactments such as. this, which are in exercise of the police power of the State, to adopt such or even a yet broader classification, as is expressly recognized in the closing sentence of section 162 of the Virginia Constitution of 1902. There it is expressly provided that nothing contained in that section should restrict the power of the General Assembly to further enlarge the rights and remedies of'the class of employees of railroads given the benefits of the provision of that section of the Constitution, or to extend such rights and remedies to other employees of railroads, “or employees of any person, firm or corporaUon.’> (Italics supplied.) And, as the employer’s liability acts of this and of other States and the State and Supreme Court decisions thereon plainly show, the law on the subject has undergone and, perhaps, is still undergoing a process of development. This is very apparent from a reading of the. Supreme Court decisions presently to be cited. It was at one time very generally thought that such legislation would be obnoxious to the equal protection clause of the Fourteenth Amendment of the Federal Constitution unless based on a classification of employees injured while engaged in an extra hazardous employment, such as the use and operation of railroads; that a classification in such legislation which embraced office or shop or other employees of railroad companies, removed from the dangers of train service, would deny to other workmen engaged in business of like or equal hazard the equal protection guaranteed by said Federal constitutional provision — would destroy the equality within the class which such provision requires — and hence would be invalid. But recent decisions of the Supreme Court have held to the contrary. L. & N. R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921, 47 L. R. A. (N. S.) 84, and note; Aluminum Co. v. Ramsey, 222 U. S. 251, 32 Sup. Ct. 76, 56 L. Ed. 185; Easterling Lumber Co. v. Pierce, 235 U. S. 380, 35 Sup. Ct. 133, 59 L. Ed. 279. See also Missouri Pac. R. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Tullis v. Lake Erie, etc. R. Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192; Minnesota Iron Co. v. Kline, 199 U. S. 593, 26 Sup. Ct. 159, 50 L. Ed. 322; El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, 54 L. Ed. 106, referred to in the more recent Supreme Court cases just cited. It is now settled beyond controversy, by the Supreme Court decisions above cited, that a classification in a State employer’s liability act of objects, based on a distinction between employers engaged in a particular business within the State (certainly where the business is that of operating a railroad, even where the railroad is not used in the business of a common carrier) — as, for example, between employees of corporations engaged in such business and employees of partnerships of private persons engaged in the same or a similar business — is within the legitimate exercise of legislative discretion in classification of the objects of such legislation and is valid in the purview of the equal protection clause aforesaid of the Federal Constitution. See especially Aluminum Co. v. Ramsey, 222 U. S. 251, 32 Sup. Ct. 76, 56 L. Ed. 185, at p. 189. But this does not solve the question of whether or not the word “railroad” is employed in a particular State statute with the meaning of a railroad used in the business of a common carrier.

[4] The State and Federal decisions construing the various employer’s liability acts of the different States, and also the Federal employer’s liability act of 1906 (34 Stat.- 232) and that of 1908 (U. S. Comp. St. §§ 8657-8665) in its application to intrastate commerce within the District of Columbia, are very numerous. Many of them have been cited in argument before us. We have examined all of those cited, and others on the same subject not cited, and such examination has been very helpful in enabling us to reach the conclusion above expressed. We find this to be the doctrine of such decisions: Whatever may be the specific words used' in this character of, or in kindred, legislation to classify the objects of the statute, the legislative meaning of the words must be found by considering them in the light of other legislation in the particular State on the same subject and of the meaning which is given to the same words in other existing general legislation of such State. Mass. Loan & Trust Co. v. Hamilton (1898), 88 Fed. 589, 32 C. C. A. 46, and Williams v. Northern Lumber Co. (C. C. 1901), 113 Fed. 382, both involving Montana statutes; White v. Kennon (1889), 83 Ga. 343, 9 S. E, 1082; Ellington v. Beaver Dam Lumber Co. (1893), 93 Ga. 53, 19 S. E. 21; Self v. Adel Lumber Co. (1909), 5 Ga. App. 846, 64 S. E. 112, involving Georgia statutes; McKivergan v. Alexander, etc., Lumber Co. (1905), 124 Wis. 60, 102 N. W. 332, involving a Wisconsin statute; Dalangie v. Wild River Lumber Co. (1894), 86 Me. 315, 29 Atl. 1087, involving a Maine statute; Stearns, etc., Lumber Co. v. Fowler (1909), 58 Fla. 362, 50 So. 680, involving a Florida statute; Matrusciallo v. Milliken Bros. (1910), 141 App. Div. 769, 126 N. Y. Supp. 739, involving a New York statute; Schoen v. Chicago (1910), 112 Minn. 38, 127 N. W. 433, 45 L. R. A. (N. S.) 841, involving a Minnesota statute; Cunningham v. Neal (1908), 101 Tex. 338; 107 S. W. 539, 15 L. R. A. (N. S.) 479; Mounce v. Lodwick Lumber Co. (Tex. Civ. App. 1906), 91 S. W. 240; Kirby Lumber Co. v. Owens (1909), 56 Tex. Civ. App. 370, 120 S. W. 936; and St. Louis, etc., R. Co. v. Jenkins (Tex. Civ. App. 1911), 137 S. W. 711, involving Texas statutes. See also 5 Labatt on Master and Servant, sec. 1726, 1749-1802; Norfolk, etc., Traction Co. v. Ellington, 108 Va. 245, 51 S. E. 779, 17 L. R. A. (N. S.) 117.

In practically every State which has legislated on this subject it is found, as above indicated, that the scope of such legislation has been enlarged from time to time. In some States this development has proceeded further than in others. In some the classification of the objects of the statute embraces employees, not only of common carriers, but also of private corporations, partnerships and individuals engaged in private business of various kinds.

[5] Upon a consideration of the legislation in Virginia which is referred to in the statement preceding this opinion, we are satisfied that the statute involved in the instant case has not gone beyond embracing in its classification the employees of common carrier employers, where such employers are either acting as such, or are empowered by law to so act, in the operation of railroads in this State. See, as bearing on this subject, Wilson v. Virginia Portland. Ry. Co., 122 Va. 160, 94 S. E. 347, and what is said in U. S. Spruce Lumber Co. v. Shumate, 118 Va. at p. 474, 87 S. E. 723. This classification doubtless also includes employees of trustees, receivers and other persons who operate railroads in this State under franchises of common carriers. That is to say, the classification of the Virginia statute under consideration of the employees to whom its provisions are applicable, embraces only railroad common carrier servants. And we are satisfied that the statute aforesaid doés not go beyond this, so as to embrace the employees of private manufacturing corporations, whether foreign or domestic, engaged in the business of manufacturing in this State, or other private corporations engaged in other private business, any more, than it does the employees of individuals or partnerships engaged in private business, although they may, in connection therewith and as incidental thereto, operate private railroads.

The defendant cites and especially relies upon the decisions above mentioned construing the Minnesota and Texas employer’s liability acts therein involved.

With regard to the Minnesota employer’s liability act and the holding of the Minnesota Supreme Court that “it applies to a private company making use of locomotives and cars, the employees of which are subject to the same danger as employees of railroads engaged as common carriers,” the following is said in 5 Labatt on Master a,nd Servant, sec. 1782: “* * * Under the State decisions the act -is based upon a distinction in the nature of the employment and not of the employers, * * As we have seen the contrary is true of the Virginia statute under consideration. The latter, as aforesaid, confines its classification of the beneficiaries thereof to certain servants of the employers therein mentioned.

Similarly, as it appears from the Texas decisions, above mentioned, which are relied on by defendant, the holding of those cases (to the effect that the Texas employer’s liability acts there involved are applicable to private operations of railroads in which the employees are subjected to the same dangers as employees of railroads engaged as common carriers) is based upon the same distinction as that of the Minnesota courts holding aforesaid. As said in Cunningham v. Neal, 101 Tex. 338; 107 S. W. 539, 15 L. R. A. (N. S.) 479: “The facts show that there was no difference in the character of this road, nor in the manner of its construction, equipment or operation, from that of the connecting roads, except to the extent of the business done upon it and that it was operated by a private corporation. * * * We see nothing'indicating that the statute was enacted in the interest of the public or to secure better public service. * * * * There being nothing in the law nor in the concurrent legislation to indicate such intention in its enactment, why should the law be limited to common carriers? The legislature of Texas has by successive acts broken away from the old rule of exemption of the master for the negligence of fellow-servants in order to meet new phases of service, and, in this line, the article of the statute in question was enacted to meet and provide for the extra hazards attending the operation of machinery upon railroad tracks and to give better protection to those who were in such service by making the master or persons operating the road liable for the negligence of the persons employed in the handling and management of its machinery * * * *. The same dangers attended the operation of the machinery upon the private road of Cunningham & Co., as would have attended the operation of the same machinery upon the track of a common carrier. Therefore the injury here complained of is embraced within the letter and spirit of the statute * * This reasoning is wholly inapplicable to the Virginia statute under consideration which by its express terms embraces any and all employees therein specified regardless of whether they are engaged in the train service.

[6] 2. Are the first and third counts of the amended declaration good independently of the allegations which were intended to bring the case within the operation of the Virginia employer’s liability act, aforesaid, which were stricken out as aforesaid?

This question must be answered in the negative.

These counts allege an injury due to changing conditions at the place of work of the servant occurring in the progress of the work of other servants of the master in a different department of the service from that of the injured servant, where the circumstances alleged in the declaration are not such that any negligent act or omission of the master appears to have existed in the matter of foreseeing and guarding against the natural and probable result of reasonably to be expected acts of the fellow servants in carrying o.ut the operations of the master.

There is no allegation in the declaration of defect in the design or plan of the construction in or about the place of work of the plaintiff as contributing to the fall of the section of steel or iron pipe which injured the plaintiff, or that the circumstances were such that the defendant ought reasonably to have foreseen or anticipated that such an occurrence was likely to happen so as to unreasonably endanger the place of work of the plaintiff because of any defective design or plan of the operations of the defendant. See Hamlet v. Dupont de Nemours & Co., (ante, p. 130, 105 S. E. 529) decided at this term of court.

The case falls within the class of. cases ruled by N. & W. Ry. Co. v. Nuckols, 91 Va. 201, 21 S. E. 342, and Hambley's Case, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009, and the injured servant must be held to have assumed the risk of injury due to the negligence of the fellow servants which caused the injury. Hence we are of opinion that the counts of the declaration in question do not state a case in which the plaintiff is entitled, to recover independently of the statute.

[7] It is urged in argument in behalf of the plaintiff that the holding of -this court, in the recent case of Clinchfield Coal Corporation v. Ray, 121 Va. 318, 93 S. E. 601, in the classification of the Ray Case as falling within the doctrine of the Norment Case, 84 Va. 167, 4 S. E. 211, 10 Am. St. Rep. 827, reinstates as the law of this State some expressions in the opinion in the Norment Case, to the effect that the mere fact that the servant is employed in a different department of service renders inapplicable the common law doctrine of the assumption of risks of the result of the negligence of fellow servants, which was disapproved in the Nuckols Case. This is incorrect. The Ray Case expressly cites the Nuckols Case, and Hambly’s Case (154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009), on which the holding of the Nuckols Case upon the subject under consideration is based, and recognizes the doctrine of the Nuekols Case as the law of this State. The Ray Case held merely that “the principle on which restos the (Normamt Case) is” the law of this State and that was precisely the holding of the Nuekols Case with respect to the Normant Case. As said of the Normcmt Case in the Nuekols Case, at p. 202 of 91 Val, at p. 345 of 21 S. E., “The decision in this case was perfectly correct, but there are expressions in the opinion which we do not consider to have been at all necessary to the conclusion reached by the court ****.”

The doctrine of the Nuekols Case is that,

“1. A person entering the service of another assumes all risks naturally incident to the employment, including the danger of injury by the fault of negligence of a fellow servant.” (Italics supplied.)

“2. The liability does hot depend upon the fact that the servant injured may be. in a different department of service from the wrongdoer. The test is, were the departments so far separated from each other as to exclude the probability of contact and of danger from the negligent performance of their duties by employees of the different departments? If they are so separated, then the servant is not to be deemed to have contracted with reference to the negligent performance of the duties of his fellow servant in such other department.

“3. The liability does not depend upon gradations in employment, unless the superiority of the person causing the injury was such as to put him in the category of principal or vice-principal.”

[8] But this concerns merely the question of when the servant is to be considered as having assumed the risk of the negligence of a co-employe. Where, however, the departments are so separated that, from the standpoint of the servant, the probability of contact and of danger from the negligent performance of their duties by the employees of the different departments is excluded, if the master performs his non-assignable duty; of exercising reasonable care to provide a reasonably safe place of work for the servant, and the circumstances are such that the servant assumes and may reasonably assume, that the master has performed or will perform such duty (which would be the situation “naturally” or normally), so that the servant is not to be taken to have assumed the risk of the negligence of his co-employees, the master is liable in case of his breach of his non-assignable duty just mentioned, although the injury of the servant is due to changing conditions a,t the place and occurring in the progress of the work. The holding in the Ray Case is based upon this view of the law as appears from the opinion.

That is to say, the liability of the master in such case, if it exists, is in truth based upon his breach of such nonassignable duty. The Normant and Ray Cases, and other like cases, exemplify a situation in which both of the fea-’ tures just mentioned are present, namely, the separation of the respective departments of work to the extent and with the result stated upon the application of the doctrine of the assumption of risks, and the failure of the master in his operations to properly perform his non-assignable duty aforesaid. The situation of the servant in such case being one which has kept from his view the operation of the master in the separate department of work, and hence, the danger not being open and obvious to him, the servant has the right to and may reasonably assume that the master has performed or will perform such duty — the fact being also that the servant has not by other means acquired either actual or constructive knowledge to the contrary.

The first and third counts under consideration do not al- - lege a situation of fact from which either of the features aforesaid are made to appear.

8. Is the second count of the declaration good independently of the Virginia statute aforesaid?

[9] This count alleges an injury caused by the failure of the master to discharge the alleged duty to warn as arising from changing conditions at the place of work due to the same causes as are alleged in the first and third counts. What is said above in connection with the consideration of the second and third counts of the declaration disposes of this question adversely to the plaintiff. The duty to warn in such cases does not arise except as an incident to and growing out of the duty of the master with respect to providing a reasonably safe place of work. We have here presented the converse of the Bay Case, and for the reasons above stated in connection with the references to that casw, no duty to warn was imposed Upon the master in the instant • case. The second count of the declaration is, therefore, bad on demurrer.

The sole question remaining for our consideration is the following:

[10] 4. Is the fourth count of the declaration good?

This question must be answered in the affirmative.

It may or may not be true, as urged by the defendant, that in this case the whole cost of the medical attendance was defrayed by the defendant, and that the dismissal and forceable ejection of the deceased from the hospital under the circumstances and with the result alleged was the act of those in charge of the hospital, about whose selection and retention the defendant had exercised due care, so that it may develop on the trial of the case that his facts are such that under the doctrine of Va. Iron, etc., Co. v. Odle, 128 Va. 280, 105 S. E. 107; Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 45 S. E. 740, 102 Am. St. Rep. 839; Va. Ry. & Power Co. v. Davidson, 119 Va. 323, 89 S. E. 229; 5 Labatt on Master and Servant, p. 6214; the authorities referred to in notes in 28 L. R. A. 546 et seq., 4 L. R. A. (N. S.) 49 et seq., 17 L. R. A. (N. S.) 1167, 40 L. R. A. (N. S.) 486, 30 L. R. A. (N. S.) 1207, 48 L. R. A. 531; Union Pac. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581; Taylor’s Adm’r v. Protestant Hospital Asso., 85 Ohio St. 90, 96 N. E. 1089, 39 L. R. A. (N. S.) 427, 1 N. C. C. A. 438; and Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879, 2 N. C. C. A. 381, there may be no liability on the defendant in the premises. But these matters, under the allegations of the declaration under consideration, are matters of defense. The allegations of ultimate fact contained in the fourth count of the declaration are to the effect that the defendant undertook the task alleged, in which case, even though it was a voluntary undertaking, the law, as has been long well settled, imposed upon the defendant the duty to use some degree of care in the discharge of the undertaking. And the breach of that duty is alleged in terms, which if true, constituted conduct of the defendant itself, which was inhumane in the extreme for the results of which the defendant was, in such case, unquestionably liable. Hunicke v. Meramec Co., 262 Mo. 560, 172 S. W. 43, L. R. A. 1915 C. 789, Ann. Cas. 1915 D. 493. See also 6 Va. Law Reg. (N. S.) pp. 323-4.

Therefore, because of the error of the court below in sustaining the demurrer to the fourth count' of the declaration the case will be reversed, with leave, however, to the plaintiff, if so advised and the facts should warrant such action, to amend the other counts of the declaration in accordance with the views expressed in this opinion.

Reversed and remanded.