88 W. Va. 158 | W. Va. | 1921
Lead Opinion
Tbe purpose of tbe present writ is to review and reverse tbe judgment below in favor of plaintiff for $8,000.00, for personal injuries sustained while employed in defendant’s coal mine.
At tbe time of plaintiff’s injuries, according to tbe declaration and proof, be was an infant between tbe ages of fourteen and sixteen. Tbe declaration is in two counts, tbe first averring as tbe sole act of negligence tbe employment of plaintiff by defendant while tbe public schools of tbe district in which be lived were actually in session, contrary to tbe statute in such cases made and provided. Tbe second count avers tbe failure of defendant to pay into tbe workmen’s compensation fund tbe premiums prescribed by law, plaintiffs employment contrary to law as averred in tbe
The record shows no demurrer to the declaration or either count thereof, except that after the jury had been sworn to try the issue joined on defendants plea of not guilty, and during the trial, when plaintiff was permitted to amend each count so as to make the allegata and probata agree as to the manner in which he sutained' his injuries, the defendant demurred generally to the declaration as amended, not to each count thereof, which was overruled, and the trial thereon was proceeded with to verdict and judgment.
The first, second and third points of error relied on are without merit. The first and second relate to the question of variance between the allegata and probata as .to the par-, ticular manner in which plaintiff sustained his injuries, cured as we have shown by the amendments of the declaration during the trial. The third point relates to the action of the court, after the amendments, in proceeding with the trial over the objection of defendant. Citing .and relying on the case of Travis v. Peabody Insurance Co., 28 W. Va. 583. That ease has been substantially overruled in the late case of Koen v. Brewing Co., 69 W. Va. 94, holding that the question for which that case is cited did not arise therein, and that the point was obiter. The latter case gives proper construction to our statute on the subject, section 8, chapter 131 of the Code. This statute permits amendments to pleadings to meet the very case presented here, a variance between averment and proof, and provides that a continuance not a matter of right need not be had unless rendered necessary thereby. In the case at bar defendant made no motion for a continuance, and there was no surprise or cause for a continuance presented.
The fourth point of error is that the declaration as amended during the trial' in each count thereof is faulty in not
The fifth point of error affirmed by defendant’s counsel is that the court erred in refusing to allow it to prove by its superintendent and mine boss that plaintiff’s size and appearance and what he said indicated that he was eighteen years of age and an experienced brakeman. The evidence of these witnesses shows that they were in doubt, and questioned the plaintiff and required of him the statutory affidavit of parent or guardian that he was of the age rendering it lawful for him to be employed in or about a coal mine, and there is some evidence tending to show that they did get some sort of a certificate, not an affidavit, of a brother-in-law of the plaintiff, not his parent or guardian, consenting to his employment, but this certificate was not produced. In Norman v. Virginia-Pocahontas Coal Co., 68 W. Va. 405, and Blankenship v. Ethel Coal Co., 69 W. Va. 74, we distinctly held that the fact that such employee or his parent has misrepresented his age does not preclude recovery; so held in construing our statute, sections 24 and 25, chapter 15H of the Code, which does not excuse an em
A sixth proposition presented by counsel is that the court below committed prejudicial error in permitting one of defendant’s expert witnesses to be asked and to answer, on cross-examination, whether if some other expert who did not testify in the case had given it as his opinion that the particular condition of plaintiff was caused by the injury sustained, he would say such opinion was correct or incorrect. Counsel for plaintiff say the question and answer were not objected to. We find with respect to the testimony of Dr. Hunter, one of the experts, there was an objection and an exception, but with respect to the evidence of Dr. Wood, the other expert, there was no objection or exception to the question asked him, nor to his answer thereto, which was favorable to defendant. However, the opinions of the experts not examined by plaintiff were brought out on cross-examination of plaintiff by defendant’s counsel, wherefore we can see no error in the rulings of the court of which defendant can explain. The seventh proposition is covered by the sixth, and we make the same reply.
The eighth proposition urged, and the only one argued by defendant’s counsel, is that the violation of the statute against employment of minors within the prohibited ages does not constitute actionable negligence unless such violation thereof is the proximate cause of the injury; that an employer as a matter of law is not chargeable with all injuries that result during the unlawful employment, but is liable only for those injuries against which the statute is intended to guard. And the argument is that sections 33, chapter 10, Acts 1915, prohibiting the employment of boys between the ages of fourteen and sixteen years, was not intended to protect them from personal injuries as was section 32 thereof, inhibiting the employment of boys under the age of fourteen years, but that its purpose was to provide. for their education and protect them therein. Our answer to this proposition is that the question does not seem to
It is true, the defendant proved payment of the proper premiums into the workmen’s compensation fund so as to protect against damages sustained by anyone lawfully employed in its mines. But as the jury must have found the plaintiff was unlawfully employed while the schools in his district were in session, defendant was not protected against action by plaintiff by the workmen’s compensation fund. The protection given by the statute' does not extend to persons unlawfully employed. Section 9, chapter 15P of the Code, specifically provides that the act shall not apply to employers of employees whose employment' is prohibited by law. And we have recently decided that in cases not failing under the compensation law the common-law rights and liabilities of employer and employee must control in actions of negligence. Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251.
Wherefore, we must affirm the judgment.
Rehearing
(ON REHEARING:)
Two additional propositions are urged for reversal. First, that plaintiff, a boy over fourteen years of age, was' not,
The argument adduced in support of the first of these propositions is that section 33 of chapter 10, Acts 1915, (section 25, chapter 15H. Code 1916) relating to mines and labor, and sections 69, 72 and 74 of the chapter relating to education, being in pari materia, should be read together, and the former chapter interpreted in the light of the latter. In this view we entirely agree with counsel. Section 33 of said chapter 10, makes it “unlawful for any person, operator, agent or mine foreman, to employ or permit any boy between the ages of fourteen and sixteen years, to work in or about a coal mine at any time in which a free school is in session in the school district where said boy resides.” And section 72 of chapter 45 of the Code requires every person having under his control a child between the ages of eight and fifteen years to cause him to attend some free school for a period of twenty-four weeks yearly, beginning with the opening of the school term, and makes it a misdemeanor and imposes a penalty for failure to do so; and section 74 of that chapter makes it an offense punishable in like manner for any person to induce any such child to unlawfully absent himself from school, or to harbor or employ him, when the school in the district in which the child lives is in session.
Defendant relies on the evidence that plaintiff’s father resided in Virginia, and that when on the witness stand plaintiff said his home was in Virginia, and that after being
The question is therefore squarely presented, what com struetion should be given to the words of said section 69 of chapter 45, “residing in a sub-district or independent district with intent to make such district their home?” It will be observed that the statute does not say “permanent home.” Counsel for defendant, however, contend that the statute uses the word “home” in the sense of “domicil”, and that the domicil of an infant is that of his parent or guardian, and that he is incapable of choosing a domicil other than that
(But when the question is one relating to the education of the youth of the land, no narrow construction of the statute ought to be indulged in. In Yale v. West Middle School District, 59 Conn. 489, 13 L. R. A. 161, it was decided that a child living with a domiciled resident and tax payer of a school district as a member of his family with the expectation on the part of all parties interested that this relationship will continue permanently, although she has never been formally adopted and may not have a domicil in the technical sense of that term in the district, has a residence in the district for school purposes and can not be compelled to pay tuition as a non-resident. In State ex rel School District No. 1 of. Waukesha v. Thayer, 74 Wis. 48, it was held that a minor may have for school purposes a residence other than that of his parents. And in that case it was decided that where the mother, deserted by her husband and unable to support their minor children, found a home for the child in Waukesha, where he worked and boarded and' had no other home, was a resident of Waukesha fot school -purposes, although the mother herself was employed as a school teacher in Milwaukee and boarded there.
And so we hold that although the domicil of the plaintiff in this case for some purposes may have been that of his parents in Virginia, nevertheless as he left his home in Virginia, with or without their consent, and was allowed to labor and appropriate his earnings; and was liable to become a citizen and resident of this State, the State thereby became interested in his education and good citizenship. In the light of these facts we should not give the statute such a
As to the second proposition relied on, relating to failure to instruct, it is conceded that plaintiff was not instructed. We can not say from the evidence that he was so skilled or acquainted with the dangers to which his employment subjected him as not to call for instruction, or that these dangers were so open and apparent that instructions were not necessary. The record shows that the jury were instructed, but not what the instructions were. Presumptively they were properly instructed on the duty of an employer in the premises, and that they found against the defendant on the conflicting evidence relating to the necessity to instruct.
For the reasons formerly given and now adhered to, as well as for the additional reasons 'now presented, we adhere to our former opinion to affirm the judgment.
Affirmed.
